People v. Hazlett

Opinion

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent, v.

LARRY KUSUTH HAZLETT, JR., Defendant and Appellant.

S126387

Kern County Superior Court BF100925A

August 27, 2026

Chief Justice Guerrero authored the opinion of the Court, in which Justices Corrigan, Kruger, Groban, and Fujisaki * concurred.

Justice Liu filed a dissenting opinion, in which Justice Evans concurred.

Justice Evans filed a dissenting opinion, in which Justice Liu concurred.

*

Associate Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

S126387

Opinion of the Court by Guerrero, C. J.

On March 17, 2003, the District Attorney of Kern County charged defendant Larry Kusuth Hazlett, Jr., with the first degree murder of Tana Woolley (Woolley) in violation of Penal Code section 187.1 Because the crime occurred in October 1978, the 1977 death penalty law applies.2 (See, e.g., § 190.2, subd. (c)(3), added by Stats. 1977, ch. 316, § 9; § 190.3, added by Stats. 1977, ch. 316, § 11.) Two felony-murder special circumstances were also alleged — namely, that the murder was committed during the commission or attempted commission of rape (former § 190.2, subd. (c)(3)(iii), now § 190.2, subd. (a)(17)(C)) and burglary (former § 190.2, subd. (c)(3)(v), now § 190.2, subd. (a)(17)(G)).3 Under the 1977 death penalty law, the rape and burglary special circumstances required a finding that the murder was willful, deliberate, and premeditated (former § 190.2, subd. (c)(3); People v. Robertson (1982) 33 Cal.3d 21, 48, fn. 14).

After a jury trial, defendant was convicted of first degree murder, and the jury found true each alleged special circumstance. Following a penalty phase trial, the jury returned a verdict of death, and the trial court entered a judgment of death.

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 The 1977 law was repealed on November 7, 1978. (See People v.

Cooper (2002) 27 Cal.4th 38, 41–42.) 3 We refer to these special circumstances as the 1977 rape-murder special circumstance and the 1977 burglary-murder special circumstance.

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This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I. FACTS

A. Guilt Phase 1. Prosecution evidence a. The homicide of Woolley In October 1978, Ricky Rush and Woolley lived in Rosamond, California. They had been dating for about five years. On October 24, 1978, when it was still light outside, Rush met Woolley at her apartment. Rush spent about 45 minutes in the apartment during which time they had sex in the bedroom, lying on the sheet with the bedspread pulled down. Afterward the two drove to the store and went to Rush’s house where he lived with his mother and stepfather, a Kern County Sheriff’s Department sergeant. Before leaving the apartment, they turned on the lights for the kitchen and front porch and locked the apartment door.

Rush and Woolley ate dinner and watched television at Rush’s house. Rush’s mother and stepfather arrived sometime after dinner. Woolley was barefoot and complained of being cold, so Rush gave her a pair of socks to wear. They continued to watch television and then returned to Woolley’s apartment.

Upon arriving at Woolley’s apartment, Rush and Woolley noticed that the porch light was on but the kitchen light was off. They were “alarmed” and “thought it was strange.” Rush then went into the apartment, turned on lights, and looked around; he did not look in the bathroom or dining room. He saw that the glass in the bedroom window, which was already cracked, remained intact.

Rush characterized Woolley as very tidy. She always left the shower curtain pulled back in the open position. The kitchen window

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along an outside wall was open — it had no glass, and this was something Woolley had complained about to the apartment manager for the entire two weeks she had lived there. She had put a blanket in front of the window opening, which was approximately four feet high and three feet wide. Woolley kept the refrigerator positioned in front of the window opening to help keep the cold air out. The refrigerator was easy to move because it had wheels. When Rush looked through the apartment that evening, he did not notice that the refrigerator was out of place.

Ultimately, Rush concluded they must have turned the kitchen light off before they had left. He was there for 10 to 15 minutes and except for when he looked through the apartment, he stayed immediately inside the door, talking to Woolley. Rush kissed Woolley goodbye and told her that he would return shortly with a half-gallon of milk they had left at his house. As he drove away from the apartment, Rush saw Woolley’s bedroom light turn on. After Rush arrived at his home, he decided not to return to Woolley’s with the milk because he did not think it was important.

The next morning, Helen Woolley (Helen), the victim’s mother, was notified that Woolley had not reported to her job. When Helen arrived at Woolley’s apartment, the door was closed but unlocked. Helen entered the apartment and discovered Woolley’s body on the bed in her bedroom.

b. The investigation

i. 1978

Helen notified law enforcement. Around 10:30 a.m., Deputy Sheriff Craig Hatfield arrived at Woolley’s apartment. Upon entry, Hatfield immediately observed Woolley’s body lying perpendicular across the bed. Her body was naked except for her arms, which were covered by the sleeves of a shirt tucked under her torso, and her right

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foot, which was clothed in a blue sock. Woolley’s head hung over the edge of the bed and was “almost touching the floor.” A blue sock that matched the one on her right foot was tied around the front of her neck with the ends hanging off the sides. She had a red, frothy substance extruding from her nose and mouth. Woolley’s body was lying on the bedsheet and partially on a green bedspread, with her left foot tangled in the bedspread. Her panties and shorts were lying neatly by the side of the bed and had not been torn from her. Hatfield noticed some darkcolored spots on the carpet directly below her head and a red substance that appeared to be blood smeared on a bedroom wall.

Hatfield noticed that the shower curtain in the bathroom was drawn shut. He pulled the curtain open but found no one. Hatfield searched for possible suspects outside the apartment and found broken glass on the ground below a window that led to Woolley’s bedroom; the lower portion of the window was broken. Hatfield also found a wooden portion of the window frame lying on the ground. It appeared as if someone had broken the window from the inside out.

A photograph taken during the crime scene investigation showed the refrigerator against the wall but not in front of the kitchen window.

Rush looked over Woolley’s apartment with investigators to see if he noticed anything missing. Rush noticed that there were shoe prints inside the bathtub that he described as “dirt from a shoe, just a regular print — it wasn’t barefoot.”4 Rush confirmed that the refrigerator was normally positioned in front of the window opening and that nothing appeared to be missing from the apartment.

4 The prosecution introduced no evidence establishing the source of the shoe prints.

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Dwight Pendleton, an investigator with the Sheriff’s detective division, and his partner contacted the residents of the apartment complex to determine whether they had information relevant to the investigation. Defendant resided in apartment No. 5, east of Woolley’s apartment with no apartments between the two. When Pendleton first attempted contact with defendant at his apartment, defendant was not there. Pendleton returned around 5:30 or 6:00 p.m. Defendant was home and told Pendleton that he had left his apartment sometime around 11:00 p.m. the previous night to buy food from a convenience store. Defendant stated that he was not gone very long, took a shower upon his return, and then went to bed around 11:30 p.m. Defendant told Pendleton that Woolley’s front porch light was on at that time. When defendant woke up later during the night, he noticed that the same light was off. Pendleton testified that defendant was cooperative and answered all questions during the interview. Pendleton did not observe any scratches on defendant and had no cause for concern regarding defendant.

One day after discovery of Woolley’s homicide, Gregory Laskowski, a supervising criminalist with the Kern County Regional Criminalistics Laboratory in Bakersfield, observed Woolley’s partially nude body on an autopsy table. A blue sock had been tied around her neck as a ligature. He noted purple facial coloring with bleeding and frothing from her face and mouth and “some bruising to her upper shoulder area.” Laskowski removed the sock and put it in a bag after identifying it as evidence. With the sock removed from Woolley’s neck, Laskowski observed “deep purplish markings about the throat.” Laskowski collected two “rape kits” from Woolley’s body but did not find anything considered foreign, such as hairs that did not belong to Woolley. The vaginal swab that was obtained as part of the rape kit was later found to be missing and was not recovered.

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Laskowski explained that after the evidence was processed by the laboratory, it was stored in a bag and sent to the Kern County Sheriff’s property room, which consisted of a metal shed with shelves. The property room was subject to ambient conditions such that it was neither heated in the winter nor cooled in the summer. Evidence that was marked to be preserved was stored frozen, including biological samples with forensic significance such as cuttings from stains, vaginal swabs, oral swabs, and anal swabs. Larger items were stored under ambient conditions, including bedspreads, sheets, and pillows.

With respect to People’s exhibit No. 4, a green bedspread, the parties stipulated that (1) Woolley’s body was found lying on the bedspread, as depicted in the photographs of People’s exhibit No. 6, and (2) the bedspread was properly bagged, marked, and taken to the Kern County crime lab.

No arrest was made at the time of Woolley’s murder.

ii. 1999–2000

The Kern County Criminalistics Laboratory adopted DNA analysis in 1999. That same year, Kern County Detective Christopher Speer was assigned to investigate Woolley’s 1978 homicide with “a fresh perspective.” Speer conducted background checks on various individuals listed in the case file and began checking for available physical evidence.

On October 27, 1999, Speer contacted defendant and informed him that they were investigating a cold case involving Woolley. Defendant told Speer that he had not known Woolley. Defendant stated that he vaguely remembered the incident, having learned of Woolley’s death from some children at the apartment complex after arriving home from work in the “daylight hours” following the homicide. Defendant recalled Woolley as being possibly Caucasian or Hispanic, and that she may have had a fiancé. Although Speer had

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obtained a search warrant, defendant voluntarily provided Speer with samples of his head hair and pubic hair and a saliva swab. Speer also obtained a DNA sample from Rush.

iii. 2002

Following DNA testing — described below — police interviewed defendant and arrested him. The parties stipulated as follows regarding the interview: “[O]n December 17th, 2002, Detectives Joe Hicks and Scott Jelletich of the Kern County Sheriff’s Department interviewed the defendant, Mr. Hazlett, in Sacramento, California. During that interview, Mr. Hazlett stated that in 1978 he lived on . . . an end apartment in the apartment complex in Rosamond; that he did not know the victim, Tana Woolley; that he was never inside her apartment; that he saw three people moving the victim into the victim’s apartment but never talked to them; that the back window of his apartment faced the victim’s apartment; and that the victim’s apartment had a fence and that he believed it to be the only one that had a fence around it; that he didn’t help the victim or her friends move anything in; that Detective Hicks showed him photographs of the bedspread and the victim’s clothing from the crime scene and that he denied ever having seen those items; that he denied having sexual relations with the female depicted in . . . a photograph of . . . Tana Woolley shown to him by Detective Hicks; and that he never snuck into the victim’s apartment when she wasn’t there.”

iv. 2003–2004

On three separate occasions in 2003 and 2004, Kern County District Attorney’s Office Criminal Investigator Trent Sproles examined Woolley’s apartment. Sproles determined that the “eastnorth ” side of the front yard of Woolley’s apartment could be viewed from a window in defendant’s living room. Woolley’s apartment was

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the “only stand-alone apartment in the complex,” meaning it did not share a wall with any other apartment.

c. DNA analyses

i. The bedspread

In 2000, Kern County Regional Crime Laboratory Supervising Criminalist Brenda Smith examined Woolley’s green bedspread visually with her “naked eyes” and with an “alternate light source.” Using the alternate light, Smith observed multiple stains on the bedspread that she subjected to a chemical test for semen. Smith found two areas on the top surface of the bedspread and two additional areas from the underside of the bedspread. Each of the four areas screened positive for the presence of semen. Smith cut out each area from the bedspread and packaged them in an envelope and then into a “biopack” envelope for subsequent testing.

In November 2002, Smith removed some of the bedspread cuttings from the biopack envelope and excised a portion of two of the semen stains from the underside of the bedspread for DNA testing. Smith did not test the two stains on the top of the bedspread because they were “very small stains” and “screened very weakly positive” as semen. Using a “Profiler Plus kit” that contains “the reagents necessary to copy the DNA at . . . ten specific locations or regions on the DNA strand,” Smith compared defendant’s DNA profile from his saliva sample with the profiles of the DNA extracted from the two semen stain samples.

Smith concluded that “Larry Hazlett matched the profile . . . at eight locations . . . from the — the two stains on the bedspread, and [she] could not eliminate him as being a possible contributor to those two stains found on the bedspread.” In other words, “[t]he DNA from the sperm stains and Larry Hazlett’s DNA, based on [the] comparison, are identical.” Smith was unable to make a comparison at one of the

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nine loci “because . . . of the age of the sample, the fact that it was somewhat degraded.” Smith noted that “[t]here’s approximately six billion individuals in the world” and opined that there is a probability that “approximately one person in 126 billion” will have the same DNA profile as the two sample semen stains.5 That is, Smith opined that there is a one in 126 billion probability that “the source of this DNA is from some unknown, unrelated individual who happens to have the same DNA profile as [defendant].” Alternatively, Smith explained that “[t]he DNA profile obtained from these two semen stains is approximately 126 billion times more likely to match the DNA profile of Larry Hazlett if he is the donor of this DNA rather than some unknown, unrelated individual.”

Comparing the known reference sample of Rush to the DNA extracted from the two semen stain samples on the bedspread, Smith was able to exclude Rush as a possible contributor to either sample.

Smith obtained only partial DNA profiles of DNA extracted from fingernails clipped from each of Woolley’s hands and collected at the time of the autopsy, either because the sample had degraded over time or there was not sufficient cellular material. The DNA Smith extracted from the fingernails was attributable to only Woolley.

ii. The sock tied around Woolley’s neck On January 16, 2003, Smith examined the sock that was found tied around Woolley’s neck. Smith obtained only partial DNA profiles from each of the four samples of the sock she prepared because each sample was degraded to some extent. Smith determined that each sample had a mixture of DNA from at least two persons. Smith compared the DNA profiles of each sock sample with Rush, Woolley,

5 The DNA experts provided statistics using a single population database without reference to race.

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and defendant. Rush was eliminated as a contributor “to any portion of the mixture found on the four sock samples.” Smith determined that Woolley was the major contributor of the mixture found on each sock sample.

Smith could not eliminate defendant as a potential minor contributor to the mixture of DNA extracted from the four sock samples. Defendant’s DNA profile matched the DNA profiles of the samples based on comparisons at five of the nine genetic locations, i.e., loci. Based on one of the sock samples, Smith concluded that “[i]t’s approximately . . . 310,000 times more likely to match the DNA profile of Hazlett, if he is the donor or the contributor of this DNA, rather than some unknown, unrelated male individual.”

d. Autopsy results

Kern County Coroner’s Office contract pathologist Dr. Debra Hanks testified at trial after reviewing the autopsy photographs and report prepared by Dr. D.F. Ambrosecchia of the Kern County Coroner’s Office, who had died before trial. The autopsy report was not admitted in evidence.

The autopsy report noted a circumferential wound on Woolley’s neck, blood spots on her face, and hemorrhages in her eyes, thyroid gland, and neck muscles resulting from strangulation. Nothing collected during the autopsy indicated that Woolley scratched the perpetrator. Nothing revealed that the perpetrator used his or her hands or any other instrument except the blue sock to commit the crime.

Based on the autopsy report and photographs, Dr. Hanks determined that Woolley died from ligature strangulation from something being wrapped around her neck and pulled so hard that it cut off oxygen to her brain. The pathologist testified hypothetically about how long it would take for death to occur after pressure is first

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applied by a ligature to a victim’s neck; she stated that it depends on the type of ligature used, the perpetrator’s strength, and whether the victim fought back and struggled. Dr. Hanks explained that the victim could become unconscious between 20 to 30 seconds to three minutes after pressure was initially applied and that death would result within three to five minutes, although it “could be considerably longer.” The three-minute minimum period before death would result assumed application of continuous pressure. Dr. Hanks further testified that with application of continuous pressure, “once you become unconscious and the flow of oxygen to the brain is cut off, because the blood flow is cut off, then death occurs within a few minutes.”

On cross-examination, Dr. Hanks elaborated that during the period between unconsciousness and death “[i]t takes a while for all of the oxygen to get cut off to the brain for the body to go through the physiological mechanisms of death, which usually . . . first as you’re passing out you can’t see . . . then the oxygen is cut off, the body may go through convulsions. There may be voluntary and involuntary struggling that occurs during the strangulation, so it takes a little while after the flow is cut off for actual death to occur.” Dr. Hanks explained that “a brief stopping of the blood flow to the brain like [that effectuated by pulling very strongly] and then releas[ing] wouldn’t cause death.” The pathologist clarified that “certainly, situations like major blunt force trauma to the neck that would crush the larynx and the windpipe would [cause death]” but “[t]hat wasn’t in this case.” Regarding the force applied to the sock ligature around Woolley’s neck and the time between application of that force and Woolley’s death, Dr. Hanks testified that “it’s very clear from the [autopsy] report and the photographs that there’s a very large ligature around the neck with enough crushing force that crushes a necklace into the skin. There’s hemorrhaging of the thyroid gland and hemorrhaging of the

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muscles, and so the fact that there was enough time for blood to even get into those tissues means that there were certainly seconds to minutes that this . . . person was alive and the blood was still pumping and certainly the ligature was enough that resulted in death.” The strangulation caused the “blood spots on the face and some hemorrhages in the eyes.”

Dr. Hanks testified that Dr. Ambrosecchia performed a liver temperature test to determine the inner-core temperature of Woolley’s body, which assists in determining the time of death. Dr. Hanks assumed that Dr. Ambrosecchia conducted a proper test, although the test result was not noted in the autopsy report. Dr. Hanks related that Dr. Ambrosecchia found Woolley’s stomach contained digested food. Depending on the size of the meal eaten, complete digestion occurs within one to four or five hours. Based on the undocumented liver temperature and stomach contents, Dr. Ambrosecchia determined Woolley’s death occurred between 11:00 p.m. and 1:00 a.m. In that respect, Dr. Hanks concurred in Dr. Ambrosecchia’s opinion.

e. Evidence of other sexual offenses by defendant The prosecution introduced evidence of sexual offenses that defendant committed against four other women. Defendant contends this evidence, which included evidence of his racially charged comments to one or more of those other sexual assault victims, was unduly prejudicial and should have been excluded. (See Evid. Code, § 352.) We describe the evidence in more detail in this opinion’s subsequent treatment of this claim.

2. Defense evidence

David Diosi was a forensic scientist employed by the Kern County crime laboratory assigned to collect trace evidence for examination and testing in this case. Diosi examined the green

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bedspread and removed numerous hairs and fibers. Diosi did not report finding any stain or biological material such as blood or semen on the bedspread. Diosi examined the bedsheet taken from Woolley’s bed, from which he removed numerous hairs and fibers, and noted the presence of biological stains. Certain of these stains tested positive for acid phosphatase, which might indicate the presence of semen.

In 2003, the defense retained Lisa Calandro, a former DNA laboratory supervisor in the forensics science division of Forensic Analytical. Calandro visually examined the bedsheet that was under Woolley when her body was found for the presence of biological stains. She observed and tested yellow stains on the sheet for acid phosphatase, found in high concentrations in semen and at lower concentration levels in other body fluids. A couple of the tests from these stains yielded weak positive results for acid phosphatase. Calandro cut four areas from these stains and ultimately determined that only two of the cuttings yielded a sufficient quantity of DNA for typing. Calandro compared DNA profiles of defendant and Rush to the two samples and was able to exclude defendant as a possible contributor to one sample but could not exclude Rush as a possible contributor to the same sample. The results of the other sample were indeterminate.

B. Penalty Phase 1. Prosecution evidence The prosecution introduced a certified copy of a Los Angeles County Superior Court docket reflecting defendant’s 1971 misdemeanor conviction for assault with intent to commit great bodily injury under section 245. The prosecutor also introduced victim impact testimony from Woolley’s family members.

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2. Defense evidence a. Defendant’s family background Gina S., defendant’s half sister,6 testified that she had served in the Air Force for more than 24 years and had obtained the top enlisted rank of chief master sergeant. Defendant was about 14 years older than Gina and was the eldest of her nine brothers. Several of her brothers were successful, but five had been sentenced to prison. Gina considered defendant successful given that he attended night school and obtained his college degree. Defendant took care of his son, Lucas, during the day while his wife, Ellen, worked. Gina and defendant regularly took their children to parks and the Sacramento Zoo. Defendant treated Ellen’s daughter Rachel as if she were his child. Defendant encouraged Gina to go to college.

Gina recalled that her father (defendant’s stepfather) physically abused their mother with his fists and leather belts, tied her up once, and threatened her with knives and guns. Gina had “vague memories” of altercations between her father and her older brothers, including defendant. Gina believed that she was less than 10 years old when defendant moved out of the family residence. Defendant lived close by and stayed in touch with his family members. Gina got to know defendant as an adult after she joined the military and was stationed near Sacramento, where defendant was living. When Gina experienced a midcareer crisis, defendant encouraged her not to quit and told her that he was proud of her. Gina felt defendant was “one of the most significant people [she] would have been letting down” if she quit.

When Gina’s father was older, he lost his vision and one leg and became depressed. He was “always grousing and negative,” but

6 Gina and defendant had the same mother.

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defendant was always “nice” and patient with him. When Gina’s brother Dan was unable to care for their father, defendant would assist, including carrying him to the bathroom. Gina later reflected on the compassion defendant showed her father before he died, and how he was able to forgive him for his prior abuse of the family. After their mother had heart surgery, defendant occasionally cared for both of his parents and at one point took his stepfather to his home until he and Gina could find an appropriate facility for him while their mother recuperated.

Defendant’s half brother Dan, who was five years younger than defendant, testified that the three older brothers, including defendant, at times tried to intervene when their father beat their mother. They were shoved aside and told to go to their room. Dan recalled that defendant was beaten almost weekly by his stepfather (Dan’s father) and was once hit over the head with a plaque. Defendant’s stepfather cursed defendant while beating him, calling him an “MF” and “[u]ngrateful bastard.” Defendant’s stepfather would hit him with an open hand and various objects including a piece of wood, an electrical cord, and a clothes hanger. After the beatings, defendant sulked and was depressed. Years later, when their parents became elderly, defendant frequently visited them to see if they needed assistance.

Kevin, one of defendant’s younger half brothers, testified that defendant’s stepfather (Kevin’s father) was “vicious” and “out of control” when he beat defendant. Defendant’s stepfather beat other children in the family, but defendant received the brunt. Defendant’s stepfather would hit defendant hard with his hand, an extension cord, a hose, or a board.

David, defendant’s younger half brother, testified that his father (defendant’s stepfather) physically beat defendant and their mother

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often when under the influence of alcohol. The father would use belts, extension cords, a hose, or a board and hit the other children. Sometimes, defendant and his siblings would go to school with welts from their beatings.

Ellen Z. testified that she married defendant in 1983 and had a daughter, Rachel, who is not defendant’s child. Ellen and defendant had a son, Lucas. Defendant treated Rachel and Lucas the same. After Lucas was born, defendant stayed home to care for him. Later, after Lucas attended preschool, defendant worked part time and earned a college degree in 1992. When Ellen first met defendant, he enjoyed dancing at clubs, oftentimes without her. Defendant never hit Ellen or forced her to do anything against her will.

Defendant’s son Lucas testified that at the time of trial, he was a student at a university in New York and planned to graduate in 2005. Lucas credited defendant with teaching him the value of education. Defendant was never physically abusive toward Lucas or his mother.

Defendant’s stepdaughter Rachel referred to defendant as her father. Rachel testified that she was an early graduate from high school and attended college, earning her bachelor’s and master’s degrees. Rachel kept in contact with her parents and after her son was born, took him to see them. Defendant visited Rachel at times and helped take care of her son.

b. Defense expert

Dr. Rahn Minagawa, a licensed clinical psychologist with a specialty in forensic psychology and child and adolescent psychology, testified that children who are exposed to domestic violence are “derailed” from their developmental path. According to Dr. Minagawa, extensive years of research and clinical observations have shown how children are supposed to develop attachment, morals,

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and “internal abilities to control themselves when they’re angry to deal with . . . setbacks.” As such children grow older, they are “much more likely” to develop problems with substance abuse, concentration, academic performance, and relationships. These children also can experience a change in brain physiology as a result of being constantly under anxiety and tension. The continued cycle of domestic violence can be “turned inwardly” and lead to self-mutilation and suicide attempts.

Dr. Minagawa testified that children in the same family who are exposed to domestic violence are impacted differently based on their strengths and weaknesses, for example, in their ability to fend off stress in their lives. Older children tend to have more problems because they often try to protect their younger siblings. Domestic violence can have “more of an impact” on stepchildren depending on whether they are treated differently from the perpetrator’s biological children. Based on Dr. Minagawa’s interviews with defendant’s family members and his research and clinical experience, he opined that the family in which defendant grew up is a “textbook case of domestic violence gone completely amok.”

Dr. Minagawa interviewed defendant’s wife and family members. He testified that he learned of one domestic violence incident in which defendant observed his father throw a knife at his mother, which missed defendant’s mother but struck his brother David’s head. The police were called to attempt to defuse the situation. Defendant’s siblings also once heard him pleading for their father to stop beating their mother and tried to intervene on her behalf. Defendant’s siblings also repeatedly witnessed their father striking defendant with various objects, leaving defendant with welts and scars on his back and legs.

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Dr. Minagawa testified that defendant’s wife stated that defendant had never hit or slapped her and never threatened her or their children with a weapon or bodily injury. Defendant’s wife also told Dr. Minagawa that he never physically abused their children, and that he did not abuse drugs or alcohol.

On cross-examination, Dr. Minagawa testified that he administered psychological tests to defendant, who scored within normal limits with no significant psychological problems. Based on interviews with defendant’s wife, son, and stepdaughter, the defense expert agreed with the prosecutor that defendant “did not exhibit in the house any of the things . . . that a person who experienced the domestic violence that he experienced as a child, . . . might perpetrate.” The defense expert likewise agreed that defendant was “perfectly capable of controlling himself and not committing acts of violence if he doesn’t want to” and that he was not suggesting, among other things, that (in the prosecutor’s words) “because . . . defendant was in a house in which there was a good deal of domestic violence that he was irresistibly impelled to savagely rape women,” that he did not “know what he was doing” when he killed Woolley, “that he was compelled to commit murder because he suffered domestic violence as a child,” or “that the defendant was somehow forced to or irresistibly impelled to savagely rape four women.” The expert agreed with the prosecutor that defendant’s “free will was not affected by the fact that years before he had been in a household in which domestic violence had been demonstrated,” and further agreed when the prosecutor characterized his testimony as saying “that when [defendant] savagely raped and murdered [Woolley] 13 years after he had removed himself from this domestic violence situation, it’s because he chose to do so.”

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II. BATSON/WHEELER CLAIM

Defendant, who is African-American, asserts that the prosecutor violated his state and federal constitutional rights to equal protection and a jury drawn from a fair cross-section of the community when he used his first peremptory challenge against Prospective Juror A.E., the sole African-American remaining in the venire following the excusals of prospective jurors for hardship and cause. (See Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).) In denying the defense’s Batson/Wheeler motion, the trial court found that defendant had not made a prima facie showing that the prosecutor’s peremptory challenge was racially discriminatory. Defendant contends that the denial of his motion was error. We conclude that defendant has failed to make a prima facie showing of discrimination.

A. Factual and Procedural Background In her questionnaire, Prospective Juror A.E. described herself as a 17-year resident of Kern County who had attended college and had worked as an administrative assistant for the past seven and a half years. She indicated that a brother-in-law “went to jail” for “drugs.” In response to a question asking how she “[felt] about the way the [brother-in-law’s] matters were handled by the police, the district attorney, the defense attorney, courts, probation department and any others involved in the law enforcement and judicial systems,” A.E. stated, “They were handled fine.” She indicated that she had no attitude, in general, about law enforcement.

A.E. indicated on the jury questionnaire that she knew of a niece by marriage who was the victim of a sexual assault but did not know the details because “[A.E.] wasn’t in the town.” She also stated that she knew of a brother-in-law who had been accused of a sexual assault but did not know the details because “[A.E.] wasn’t there and it was

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out of town.” She responded “no” to a question whether viewing graphic photographs of the victim and crime scene “would preclude [her] from objectively analyzing the evidence in this case.” Asked whether the fact that defendant was African-American and the victim was Caucasian would bias her against or in favor of the defendant or otherwise affect her ability to be fair and impartial, A.E. indicated “No.” Asked how she felt about the criminal justice system, she wrote, “It[’]s ok.” A.E. had a “pos[i]tive” attitude about serving on the jury and stated that she previously served as a juror in a criminal trial and an alternate juror in a civil trial. A.E. wrote that her general feelings about the death penalty were that it is “used too often [and] everybody wants to get even with everyone.” Asked whether she felt the death penalty was used too often, seldom, randomly, or appropriately, A.E. responded: “Too seldom. People are accused [and] then come to find out they were innocent [and] released.” She indicated she could be a fair and impartial juror.

During voir dire by the trial court, A.E. stated that she would not automatically vote for or against the death penalty, if the case reached that stage. When asked by the court about the apparent contradiction between her questionnaire answers that the death penalty was used too often and too seldom, and her response that people had been accused and later determined to be innocent, A.E. replied, “Well, just like I stated, people are often given the death penalty and then later on found out they are not guilty because of the DNA results or — situation.” She stated that this concern would not influence any penalty vote or bias her in favor of life imprisonment without the possibility of parole. In response to subsequent questioning by defense counsel, A.E. confirmed that notwithstanding what counsel described as her “misgivings about the death penalty” as expressed on her questionnaire, she could fairly consider and weigh

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all the evidence presented and vote for death if she determined it to be the appropriate penalty.

When it was the prosecutor’s turn to question A.E., he first asked about her questionnaire response regarding exonerations and whether she had “mentioned something having to do with DNA, that it has happened that people have been sent to death row and then DNA has proved their innocence.” When the prosecutor asked A.E. whether she thought “that’s ever happened in California,” she answered “Yes.” The prosecutor followed up, “If you believe that to be the case, then you must believe that it could happen in this case.” A.E. replied, “Yes, sir.” The prosecutor asked A.E. whether, “having no reasonable doubt with regard to [defendant]’s guilt, if you thought it was an appropriate case, could you vote to sentence him to death?” She answered, “Probably not.” The prosecutor then inquired, “And the reason that you could not sentence him to death, even though you believed beyond a reasonable doubt that he committed the crime, because you’d be frightened that he, nevertheless, might be innocent and the death penalty is final?” A.E. responded, “Yes.”

The prosecutor continued, “So doesn’t that mean . . . since you’d always be worried that the defendant that you found guilty might somehow not be guilty, doesn’t that mean that you could never vote to sentence him to death?” A.E. responded, “No. I would just listen to the evidence and then go from that — from the evidence as far as finding him guilty or not.” The prosecutor asked, “Do I understand that you feel yourself perfectly capable of listening to the evidence and determining whether or not someone is guilty?” A.E. answered, “Yes, I am capable.” Returning to a discussion of penalty, the prosecutor then asked, “In the back of your mind — if you find them guilty and you start considering which penalty to impose, in the back of your mind will you always have this thought that, even though I believe he’s guilty, I might be wrong?” A.E. responded, “I think we, as

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humans, always have that in the back of our mind, so — ” and then gave essentially the same answer after being interrupted.

The prosecutor then asked A.E. if, “in view of the fact that you believe that even if, having heard the evidence, you found the defendant guilty beyond a reasonable doubt, that he might, nevertheless, be innocent, wouldn’t it be at the very least extremely difficult for you to then vote for death?” She replied, “No, because I would look at the evidence.” Asked if she had read or heard about cases through the media and thought that, “if that’s what happened, death is the appropriate penalty,” A.E. said, “[w]ell, like humans, we all have thoughts like that, yes.” A.E. responded affirmatively when asked, “If your reason told you that the appropriate penalty in this case was death, could you come back, sit in the jury box behind you, look the defendant in the eye and render a verdict of death?” The prosecutor posed this final question to A.E.: “And some people would not want to be put in the position of making a life-or-death choice, say it’s too emotionally rending, it’s too difficult; and some people might say you know what, even though my reason tells me that the appropriate penalty is death, there’s nobody I have to look in the eye . . . so I’m just going to take the easy way out and vote for life without parole, even though that’s not what I think the penalty should be. Is there any chance you might be such a person?” A.E. answered, “No, sir.” At the close of this questioning, the prosecutor passed on excusing A.E. for cause.

After voir dire and excusals for hardship or cause, which included the excusal of at least one other African-American prospective juror, A.E. was one of 64 prospective jurors remaining in

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the venire, and the sole African-American prospective juror. 7 Twelve prospective jurors were seated at random in the jury box, including A.E. When the trial court asked the prosecutor to exercise his first peremptory challenge, he excused A.E.

Defense counsel objected on Batson grounds. After the prospective jurors exited the courtroom, counsel stated that the prosecutor had excused A.E. “for the sole reason she’s African- American.” Counsel continued, “I believe that at this stage then it’s up to the prosecutor — or the Court — it’s appropriate for the Court to ask the prosecutor for his reasons in make — other than the fact that she’s African-American, the only African-American left on the possible panel.”

The trial court agreed that A.E. appeared to be African-

American. It indicated it did not know if any African-American prospective jurors remained in the venire but mentioned that “[s]ome were excused” and said that it would make a record later. The court then asked the prosecutor if he wanted to respond.

The prosecutor stated, “I do not.” The prosecutor said that by asking for his reasoning for excusing A.E., the trial court, would, in effect, be indicating that it had determined the defense had established a prima facie case of discrimination, and thereby shift the burden of proof on appeal. The prosecutor then stated that “it’s incumbent upon the Court to examine the record and [its] own memory of [A.E.]’s responses in order to determine whether or not

7 The juror questionnaire did not ask prospective jurors to identify their race. As discussed post, however, the trial court indicated on the record that Prospective Juror A.E. was the sole African-American remaining after prospective jurors were screened for hardship and excused for cause.

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there appears to be a valid reason for which I could exercise a p[er]emptory challenge, without my saying anything.”

The trial court replied that it had taken notes and was “not prepared to order the D.A. to respond.”8 Defense counsel asked the court to find that the prosecutor had not stated a race-neutral reason for excusing A.E. Counsel also reiterated that there were no other African-American prospective jurors in the potential jury panel. Counsel further asked the court to consider the circumstances under which the prosecutor questioned J.M., another African-American prospective juror, who had been excused earlier in the jury selection process. Prospective Juror J.M. had been excused for an inability to fairly consider all the evidence, namely, graphic crime scene photographs. 9 (See Code Civ. Proc., § 225.) Counsel asserted that the prosecutor’s manner of questioning J.M. could “only [be] categorize[d] as browbeating” and that the prosecutor misstated the law in implying to J.M. that she would be “forced” to look at graphic photographs in this case. Counsel argued that these circumstances, and what counsel characterized as the absence of any indication in A.E.’s questionnaire or voir dire responses that she was biased for or against the death penalty, established a prima facie case of discrimination.

8 We disagree with the dissent categorizing this exchange as “the trial court acquiesc[ing] to the prosecutor’s refusal to explain why it struck A.E.” (Dis. opn. of Evans, J., post, at p. 23.) We have recognized that “prosecutors may be reluctant to state their reasons for the record if doing so would jeopardize or nullify a ruling in their favor that the defense failed to raise an inference of discrimination.” (People v. Scott (2015) 61 Cal.4th 363, 388.) 9 Defendant does not challenge the trial court’s dismissal of Prospective Juror J.M. on appeal.

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The trial court reiterated that it would not make a “prima facie finding” of discrimination but offered the prosecutor another opportunity to respond. The prosecutor replied that his questioning of J.M. was irrelevant and that in any event, it was similar to a question defense counsel asked other prospective jurors. The trial court recalled that several prospective jurors had been asked similar questions. After stating that it was not sure whether J.M. “was the only African-American left at the time either,” the trial court concluded, “I believe that if one were to look at . . . [A.E.’s] . . . answers to the questions that one would find a logical, rational reason why the District Attorney would excuse her, so I don’t believe there’s a prima facie showing that the D.A. is somehow discriminating . . . against any particular class of individual,” and it denied the Batson/Wheeler motion.

Jury selection continued, with defense counsel exercising a peremptory challenge, and the prosecutor accepting the jury as constituted. Thereafter, defense counsel exercised nine additional peremptory challenges and twice accepted the jury as constituted; the prosecutor exercised three additional peremptory challenges and accepted the jury as constituted eight times. After the jury was selected, the defense renewed its Batson/Wheeler motion. In denying the renewed motion, the trial court stated that it did not note any other African-American prospective jurors remaining in the venire, but “[t]here were certainly some that were excused.”

Much later, during a conference with counsel while the jury was deliberating the appropriate penalty, the trial court sought to clarify its ruling denying the defense Batson/Wheeler motion. During this conference the court cited Paulino v. Castro (9th Cir. 2004) 371 F.3d 1083, 1090 (Paulino), a decision published after the jury was selected in this case that held that “ ‘California courts in following the “strong likelihood” language of Wheeler are not applying the correct legal

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standard for a prima facie case under Batson.’ ” The trial court continued: “I just want to put on the record, that when [defense counsel] made his objection that I did not find — as you know, I did not find a prima facie case, because I did not believe there was any inference of discriminatory purpose. [¶] And this case [Paulino] reemphasized . . . that the inference of discriminatory purpose was the standard, not what some [c]ourts had previously stated was to show a strong likelihood. So, clearly, I don’t believe there was an inference.” The court added that “the definition of prima facie case is — and the law is — it used to be — or it was interpreted to mean that the defendant had to show a strong likelihood. However, the [f]ederal [c]ourt and the California Supreme Court has indicated, no, it means they — the objector, the defendant, would have to show there is an inference of discriminatory purpose.”

B. Discussion A prosecutor’s discriminatory peremptory challenge of a prospective juror based on their race or ethnicity violates a defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276–277; People v. Banks (2014) 59 Cal.4th 1113, 1145 (Banks).) “Exclusion of even one prospective juror for reasons impermissible under Batson and Wheeler constitutes structural error, requiring reversal.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158.)

“A Batson/Wheeler objection triggers a three-step inquiry. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citation.] Second, once the defendant has

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made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” ’ ” (Banks, supra, 59 Cal.4th at p. 1146.) “Ordinarily, we review the trial court’s denial of a Wheeler/Batson motion deferentially, considering only whether substantial evidence supports its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341 (Bonilla).)10 For cases tried before the United States Supreme Court’s decision in Johnson v. California (2005) 545 U.S. 162, which clarified the standard to be applied at the first stage of the Batson inquiry (id. at p. 169), “we have ‘adopted a mode of analysis under which, rather than accord the usual deference to the trial court’s no-prima-facie case determination, we “review the record independently to determine whether the record supports an inference that the prosecutor excused a juror on a prohibited discriminatory basis.” ’ ” (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 760; see also People v. Rhoades (2019) 8 Cal.5th 393, 428–429 (Rhoades).) As stated, during penalty phase deliberations the trial court said that it had applied this standard in determining whether a prima facie showing of discrimination had been made, citing the then-recent decision in

10 Code of Civil Procedure section 231.7, enacted in 2020 (Stats.

2020, ch. 318) establishes a new framework for evaluating peremptory challenges to identify instances of improper discrimination. The statute applies only in trials in which jury selection began on or after January 1, 2022 (Code Civ. Proc., § 231.7, subd. (i)). It is inapplicable here and nothing we say in this opinion, or in a dissent (see dis. opn. of Evans, J., post, at pp. 18–19, fn. 2) should be understood as an interpretation of that statute.

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Paulino, supra, 371 F.3d at page 1090. Nevertheless, out of an abundance of caution we independently consider whether the record supports an inference that the prosecutor excused Prospective Juror A.E. because of her race.

“We consider ‘all relevant circumstances’ in making that determination. [Citation.] We have identified certain types of evidence as ‘especially relevant,’ including: ‘whether a party has struck most or all of the members of the venire from an identified group, whether a party has used a disproportionate number of strikes against members of that group, whether the party has engaged those prospective jurors in only desultory voir dire, whether the defendant is a member of that group, and whether the victim is a member of the group to which a majority of remaining jurors belong. [Citation.] We may also consider nondiscriminatory reasons for the peremptory strike that “necessarily dispel any inference of bias,” so long as those reasons are apparent from and clearly established in the record.’ ” (Rhoades, supra, 8 Cal.5th at p. 429; see also Batson, supra, 476 U.S. at pp. 96–97 [“relevant circumstances” include a “ ‘pattern’ of strikes against black jurors” and “the prosecutor’s questions and statements during voir dire examination”].)

Based on an independent review of the record, we conclude that the totality of the circumstances surrounding the prosecution’s excusal of A.E. do not support an inference of discrimination.

We first consider “ ‘whether a party has struck most or all of the members of the venire from an identified group, [and] whether a party has used a disproportionate number of strikes against members of that group.’ ” (Rhoades, supra, 8 Cal.5th at p. 429.) Here, the prosecutor used his first peremptory challenge, out of a total of four, to excuse the sole African-American prospective juror remaining on the venire after other prospective jurors had been excused for

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hardship and cause. The dissent relies heavily on this factor, contending that the “immediate removal of the lone Black prosecutive juror” in a case that was “highly racially fraught . . . raised an inference of discrimination.” (Dis. opn. of Evans, J., post, at p. 1; see id. at pp. 7–8 [identifying prosecutor’s use of his first peremptory strike to remove “the last remaining juror of [defendant’s] minority race” in a case that was “highly racially fraught” as circumstances that “ ‘loom large’ ” in this case].)11 “There is no doubt that Blacks constitute a cognizable group for [Batson/]Wheeler purposes” (People v. Turner (1986) 42 Cal.3d 711, 719), and the one strike eliminated all the African-American jurors remaining in the jury pool in this case. Yet it is important here that defendant’s Batson/Wheeler argument is based on only one peremptory challenge. “Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case . . . to make a prima facie case after the excusal of only one or two members of a group is very difficult.” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.) Indeed, when only one excusal is involved, we have repeatedly held that “ ‘ “the small absolute size of [the] sample makes drawing an inference of discrimination from this fact alone impossible.” ’ ” (People v. Taylor (2010) 48 Cal.4th 574, 614–615 (Taylor); see also id. at p. 614 [“That the prosecutor excused a single African-American prospective juror, without more, does not support the inference the excusal was based on race”]; People v. Hamilton (2009) 45 Cal.4th 863, 899 [describing the trial court as having “correctly rejected [the] defendant’s

11 There are two dissenting opinions, one written by Justice Liu and one by Justice Evans. Because they join in each other’s dissenting opinions, we refer to them collectively as “the dissent” and identify the specific opinion to which we refer where appropriate in parentheses.

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argument that the challenge of the only Black person subject to challenge was sufficient in and of itself to suggest” an inference of discrimination]; accord, Bonilla, supra, 41 Cal.4th at p. 342 [“all African-Americans — two of two — were struck from the juror pool,” albeit where the defendant was not African-American].)12

12 The dissent contends that, unlike “other courts,” “this court has not yet had occasion to consider” a “per se rule that striking the last remaining juror of a defendant’s race is unlawful.” (Dis. opn. of Evans, J., post, at p. 9.) But we have adopted a well-established framework, and it does not treat any factor — including striking the last remaining juror of a defendant’s race — as dispositive. We see no basis to depart from our settled case law which considers whether a totality of the relevant facts gives rise to an inference of discriminatory purpose. (Banks, supra, 59 Cal.4th at p. 1146.)

Moreover, we are not bound by the decisions of other courts adopting the type of per se rule cited by the dissent. (See People v. Williams (1997) 16 Cal.4th 153, 190.) We note, however, that courts have also rejected this approach. (See, e.g., Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943, 955 [“the prosecutor’s use of a peremptory strike against the only African-American prospective juror is a relevant consideration, although it does not by itself raise an inference of discrimination”]; U.S. v. Bergodere (1st Cir. 1994) 40 F.3d 512, 516 [“the mere fact that the prosecutor challenges the only juror of a particular race, without more, does not automatically give rise to an inescapable inference of discriminatory intent”]; State v. Walker (Wis. 1990) 453 N.W.2d 127, 174, fn. 7 [rejecting a “bright-line rule that when a prosecutor uses peremptory challenges to exclude all members of defendant’s race from the petit jury, a prima facie case is automatically established, even if only one peremptory strike is needed to exclude all members of defendant’s race,” especially since the high court in Batson “did not adopt such a rule, even though all four black members of the panel of prospective jurors were eliminated by the prosecutor’s peremptory challenges”].) None of this means this opinion somehow “downplays the significance of striking the last juror of a defendant’s race in the totality of the circumstances analysis” (dis. opn. of Evans, J., post, at p. 10), or “fails to attribute proper significance to the prosecutor’s conduct” (id. at p. 11). It just means

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Turning to the other circumstances surrounding the excusal, the prosecutor used his first challenge on A.E. and then was prepared to accept the jury as constituted. We conclude that the timing of this challenge carries only limited significance. (See, e.g., People v. Reed (2018) 4 Cal.5th 989, 1000 (Reed) [no prima facie case where prosecutor exercised five of his first eight peremptory strikes on Black jurors; the prosecutor’s overall use of strikes “did not target black jurors in a particularly disproportionate manner”].) We have in the past found it somewhat noteworthy that a prosecutor declined to exercise an early peremptory challenge on a prospective juror whose excusal later formed the subject of a Batson/Wheeler motion, observing that this sequence “tends to suggest” that the later challenge to the prospective juror was not based on race. (People v. Battle (2021) 11 Cal.5th 749, 777 (Battle).) But we also noted in Battle that “[a] delay in striking [a juror] could also align with a strategy to avoid detection of race-conscious strikes.” (Ibid.) As this latter observation in Battle suggests, it is not especially telling that the prosecutor used his first peremptory challenge on A.E., as opposed to waiting until later to exercise the challenge. The prosecutor could have concluded early on, based on race-neutral reasons, that he did not want A.E. as a juror regardless of how the jury was otherwise composed.

Regarding another circumstance we identified as relevant in Rhoades, any possible inference of discrimination here is undercut by the prosecutor’s thorough questioning of A.E. (See Rhoades, supra, 8 Cal.5th at p. 429 [courts consider “ ‘whether the party has engaged [the excused] prospective jurors in only desultory voir dire’ ”].) As recounted above, the prosecutor probed A.E.’s views regarding the death penalty at considerable length during voir dire. After A.E. said

the majority and the dissenters in this case have different views regarding the totality of the relevant facts surrounding A.E.’s excusal.

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she could “[p]robably not” vote to sentence defendant to death even if she thought it was an appropriate case, the prosecutor pressed further to inquire into the reason A.E. held this view, leading to further dialogue in which A.E. ultimately agreed that, in an appropriate case, she could look defendant “in the eye and render a verdict of death.” The prosecutor then passed on A.E. for cause. This voir dire is not suggestive of a discriminatory intent.

Next, we consider “ ‘whether the defendant is a member of’ ” the same identifiable group as the excused prospective juror (Rhoades, supra, 8 Cal.5th at p. 429), “ ‘and whether the victim is a member of the group to which a majority of remaining jurors belong’ ” (ibid.). In this respect, defendant argues that the prosecutor’s challenge of the sole African-American prospective juror remaining in the venire took on additional significance because both defendant and the challenged prospective juror are African-American, while the homicide victim and the victims of the uncharged sexual assaults were Caucasian. Like the dissent (dis. opn. of Evans, J., post, at pp. 11–13), defendant further notes that certain evidence and argument at trial involved a racial dynamic, and that the case was ultimately tried before what he describes as an all-White jury.13 We agree that these circumstances are relevant in determining whether a prima facie showing of discrimination has been made. (See People v. Johnson (2019) 8 Cal.5th 475, 510 (Johnson); Rhoades,

13 The defense represented at trial that no African-American prospective jurors remained in the venire after A.E.’s excusal, but no record was made regarding the race of seated jurors, alternate jurors, or prospective jurors challenged by the People, other than A.E. The record thus does not foreclose the possibility of seated jurors who were neither African-American nor Caucasian. Nevertheless, the People do not dispute defendant’s description of the jury as “all-White,” and we accept this characterization for purposes of this discussion.

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supra, 8 Cal.5th at p. 429; Taylor, supra, 48 Cal.4th at p. 643.) Yet, “standing alone” (Battle, supra, 11 Cal.5th at p. 775), the facts upon which defendant and the dissent rely — “a Black defendant, the excusal of [a] Black prospective juror[], [a] White victim[] . . . , and a conviction and sentence imposed by” what we assume for present purposes to be “an all-White jury” — “are not dispositive” (Battle, at pp. 774, 775). Instead, “we must carefully scrutinize” the totality of the circumstances “ ‘with these and all other relevant circumstances in mind.’ ” (Id. at p. 775.) And here, there is nothing beyond these facts, and the prosecutor’s exercise of his first peremptory challenge on A.E., to support defendant’s argument regarding an inference of discrimination. We conclude that is not enough.

Like the dissent, we acknowledge this case presents “racial elements” (dis. opn. of Evans, J., post, at p. 13) for us to evaluate when examining the prosecutor’s exercise of a peremptory challenge. In considering this claim, Battle, supra, 11 Cal.5th 749 is instructive. There, we reviewed a trial court’s determination that the defendant had failed to establish a prima facie case of discrimination in the excusal of a Black prospective juror. The prosecutor had excused this prospective juror and another Black prospective juror using two of his first 11 peremptory challenges. (Id. at p. 770.) On appeal, in considering whether the totality of the evidence was sufficient to permit an inference of discrimination, we “first note[d] that the presence of salient racial issues in the case raises concerns that warrant careful consideration.” (Id. at p. 774.) Specifically, we observed that the defendant in Battle was Black and his victims were White. (Ibid.) We explained, “This provided the prosecutor with a plausible motive to strike Black prospective jurors on the impermissible ‘assumption or belief that’ they ‘would favor’ [the defendant] solely because of their shared race.” (Ibid.) In addition to the “ ‘ “heightened concerns” ’ ” associated with those circumstances

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(ibid.), we also noted that the defendant was ultimately convicted and sentenced to death by an all-White jury in what we described as a “racially charged” (ibid.) case in which the elderly victims were abducted from their home, forced into the truck of their car, driven out to the desert, and then stabbed to death; and in which the defense case in mitigation included evidence that the defendant had been the victim of racial discrimination as a child. (Ibid.) Our decision in Battle summarized these “salient racial issues at play” as “significant” but not “dispositive”; the focus remained on the totality of the circumstances rather than these facts alone. (Id. at pp. 774, 775.) We ultimately concluded that the totality of the circumstances did not support an inference of discrimination. (Id. at p. 785.)

The analysis in Battle is consistent with our conclusion in this case that the “salient racial issues” presented (Battle, supra, 11 Cal.5th at p. 774) are not “dispositive” (id. at p. 775), and that more is required for the prosecutor’s exercise of a single peremptory challenge to give rise to a prima facie showing of discrimination. 14 Although both the dissent and defendant assert that other circumstances contribute to an inference of discrimination here, we find these arguments unpersuasive. The dissent, for its part, contends

14 Of course, no two cases are identical. In Battle the prosecutor did not immediately strike the prospective juror at issue, instead using his ninth challenge on her (Battle, supra, 11 Cal.5th at p. 770); and after the trial court denied the defendant’s Batson/Wheeler motion the prosecutor twice accepted panels including another Black juror, who was ultimately struck by the defense, with another Black prospective juror being chosen as an alternate juror. (Id. at p. 772.) Here, as explained, there were no African-American prospective jurors remaining in the venire after A.E. was struck, so we have no way of knowing whether the prosecutor would have exercised peremptory challenges against them. We nonetheless find Battle instructive in a case with racial elements like those present here.

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that the prosecutor “evoked offensive racial imagery and themes” in order to “ ‘implant both racial fears and prejudices in the mind of the jury’ ” (dis. opn. of Evans, J., post, at p. 12), and it relies on Bennett v. Stirling (4th Cir. 2016) 842 F.3d 319 (Bennett) to support its position. We find the case inapposite.

In Bennett, supra, 842 F.3d at page 324, the federal court held that an improper appeal to racial prejudice occurred where the prosecutor’s closing argument in a case involving a black defendant “alternated between characterizing [the defendant] as a primitive, subhuman species and a wild, vicious animal.” The court noted that the prosecutor “chose to use racially charged language from the first sentence of his opening argument to his final soliloquy, casting aside the race-neutral presentation he had [previously] employed with the [prior] mixed-race jury.” (Id. at p. 321.) Before the jury that convicted the defendant, the prosecution described him as a “ ‘huge, giant man, six-six, six-seven, brutal monster size’ ” (id. at p. 326), and then referred to him as “ ‘King Kong on a bad day,’ ” and “a ‘caveman,’ a ‘mountain man,’ a ‘monster,’ a ‘big old tiger,’ and ‘[t]he beast of burden’ ” (id. at p. 321). We disagree with the dissent that the circumstances here, including the prosecutor’s use of the adjective “savagely” during expert questioning at the penalty phase, are at all comparable to the disturbing facts of Bennett. (Dis. opn. of Evans, J., post, at p. 12.) In context, this description of the way defendant raped women does not support an inference that A.E. was excused because of discrimination during the jury selection process.15 As in Battle,

15 The prosecutor’s examination of the expert witness makes clear the behavior he was referring to when stating defendant “savagely” raped women. For example, after his initial question using the words “savagely rape,” the prosecutor inquired of the witness, “You are not suggesting, are you, that when he bit a woman so hard that the scars

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supra, 11 Cal.5th at page 785, “[a]lthough the racial context of the case raises some initial concerns, [defendant’s] showing fails to establish a basis for inferring that the prosecution may have struck a particular Black juror because of her race.”

For his part, defendant contends the prosecutor’s voir dire of J.M. concerning photographic evidence, as juxtaposed against the questioning of other prospective jurors of different races, showed that he was focused on removing African-American prospective jurors during jury selection.16 In perceiving a discrepancy, defendant identifies Prospective Jurors J.B. and C.G. as not having been questioned by the prosecutor about their ability to view disturbing photographs even though they also expressed reservations on this subject in their respective questionnaire responses. Defendant acknowledges that the prosecutor asked another prospective juror, N.P., about the possible effect that viewing “extremely graphic, somewhat, and gruesome photographs” would have on her pregnancy, but he characterizes the prosecutor’s questioning of J.M. as being “much more aggressive.”

Defendant’s argument asks us to undertake an unusual form of comparative juror analysis that would juxtapose the treatment of

remained on her 20 years later, that he had to do it?” Similarly, after a subsequent question involving the same “savagely rape” description, the prosecutor asked, “And when he kicked one of these women on the ground repeatedly so hard that he left [a] shoe print on her, he knew what he was doing, did he not?” We do not believe the nature of these remarks — contextualizing defendant’s conduct for purposes of the penalty phase of the case — establishes a prima facie showing of discrimination during jury selection. 16 The dissent does not appear to rely on this argument to support its position that defendant made a prima facie showing of unlawful discrimination. (See dis. opn. of Evans, J., post, at p. 6.)

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J.M., who was dismissed for cause, against two other prospective jurors who were also dismissed for cause. It is questionable at best whether this sort of comparison among prospective jurors excused for cause is capable of shedding light on the existence of discriminatory intent in the dismissal of A.E. Even assuming the purported difference in the questioning of J.M. and other prospective jurors is relevant to the question of discriminatory intent in the excusal of A.E., we perceive no indication of bias upon reviewing and comparing the voir dire of these prospective jurors.

As background, J.M. repeatedly indicated on her written questionnaire that she might have difficulty viewing the photographs in this case, stating in response to one question (Question 41), “I wouldn’t want to see the photos,” and in response to another (Question 66), “probably emotional if I have to view photos.”17 During voir dire, the court asked about “the question about the photos and the crime scene.” It inquired, “You indicated that you wouldn’t want to see the photos. And I appreciate that. I can understand that. I don’t know that any of us want to see the photos, but you understand that as a juror that would be necessary; if you were a juror, you would, in fact, have to look at the photos?” J.M. replied, “Yes.” When the trial court then asked if she could do that, J.M. replied, “If they’re just pictures of people, I could, but — ,” at which point the trial court interjected, “Now you have to understand, it’s not going to be — it’s

17 Question 41 on the jury questionnaire asked, “If you are chosen as a juror in this case, you will hear evidence about the violent death of Tana Wooley [sic] and you will see graphic photos of her and the crime scene. Do you feel that viewing such photos would preclude you from objectively analyzing the evidence in this case?” Question 66 asked, “Is there ANYTHING that you would like to bring to the court’s attention that might affect your ability to be a fair and impartial juror in this case? [Indicate if you wish to discuss this matter privately.]”

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going to be pictures of the victim.” The trial court added, “Which means that it’s not TV, it’s not the movies. It might be TV in the sense that it’s graphic, you know, news, CNN, or whatever news you might watch.” J.M. replied, “I don’t watch those, either.” The trial court responded, “I understand that, but the question becomes in this you would have to look at photos of the victim, a deceased victim. [¶] Is that something that would cause you not to be able — is there something about that you could not — simply could not look at them and weigh the evidence?” J.M. replied, “Well, I guess if I was chosen and I had to look at them, I would look at them.” The judge then asked, “Okay. Do you understand there’s a difference between, judge, I can’t do that and, judge, I don’t want to but if you have to I have to? Do you understand there’s a difference?” J.M. answered, “Yes. I don’t like shots, either, but when I have to take them, I do.”

When it was time for the prosecutor to question J.M., he asked first about another topic implicated by her questionnaire responses. Turning to the subject of photographs, he said that she was “the only prospective juror who mentioned a difficulty with looking at the photographs twice in your questionnaire” and inquired, “Do you understand that if you’re chosen as a juror in this case, I’m going to be asking you to look at some very graphic, violent photographs, not because I want to but because it’s necessary?” J.M. replied, “I understand that. That’s why I had to put it down there.” The prosecutor also asked J.M., “In this case it would be necessary for a juror to understand the evidence, to intently examine photographs that depict forensic evidence that would be extremely unpleasant to look at. Do you understand that?” She answered, “Yes, I do.” The prosecutor followed up, “Do you think that you could do that? And some people can’t, and it’s perfectly all right.” J.M. responded, “I’ll tell you, I’ll do the best I can, but those — they really work with your emotions in your head.” When the prosecutor asked if there was “any

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chance that you would simply glance at they [sic] really graphic picture and simply be unable to look at it any longer,” J.M. replied, “Real chance.” In his last question concerning the photographic evidence, the prosecutor asked J.M., “Is there any chance that if you were forced or required to look at a number of graphic photographs, that your emotions might take over and you would be unable to dispassionately analyze what you were looking at?” She answered, “Yes. And that’s the truth.”

Turning to the three other prospective jurors that defendant argues were similarly situated but questioned differently, one of J.B.’s questionnaire responses indicated qualms about certain violent visuals and that she did not “even go to violent movies.” Before the attorneys had an opportunity to question J.B., the trial court said it wanted to talk with her about “the graphic nature of any photographs.” The court told her, “it’s not TV. It’s not the movies. This is real.” After further questioning in which J.B. described her reaction to a gory movie in high school, which she listened to but could not watch, the trial court told her, “In this case . . . you’re going to have to look at [photos] in order to be a juror in this case,” asking if she thought “that might prejudice you or cause you some emotional response you just could not be fair?” J.B. responded, “I — I — in my heart I just don’t think I could.”

Questioning then shifted to J.B.’s views regarding the death penalty. During this questioning, J.B. said that “[her] conscience would tell [her]” to automatically vote against the death penalty. The trial court then asked whether J.B. could “get there to the point where the death penalty would be appropriate?” In replying, J.B. said, “And it’s really hard in this far — on the other side of sitting as a potential juror, um, it’s hard to say. I don’t know what my feelings, given my inabilities to watch any kind of graphic violence and, you know, with my background having been molested as a little kid, I don’t know —

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bringing with me to that, I don’t know what my reactions would be. That’s the only honest answer I can give you. [¶] Um, as — as I sit here right now I — I don’t think I would be for the death penalty, but, you know, if those surface — you know, those emotional things were driving me, who — you know, I don’t know. I think I probably — I don’t know.” When it was the prosecutor’s turn to question J.B., most of his questions related to her views toward the death penalty, with no probing of her reaction to graphic photos. At the conclusion of this questioning, the prosecution and the defense both passed on J.B. for cause.18 C.G. had stated in her questionnaire response that “[i]t would be a definite possibility” that viewing graphic photos of the crime scene would preclude her from objectively analyzing the evidence. During voir dire, the trial court inquired, “Let me ask this: The real question, though — and it is real life, but do you think it would upset you if you have to watch — not watch, see a photograph or listen to the graphic nature of this crime that it would cause you not to be able to listen fairly and impartially?” C.G. responded, “I would certainly try and be fair and impartial, but I don’t know. I have not been put in this position before, so I don’t know.” The trial court followed up, “We actually had a juror, and I didn’t know this, has a condition where she simply can’t look at something like this. You’re not claiming that, though?” C.G. responded, “No.” The trial court then inquired into C.G.’s views regarding the death penalty. The prosecutor successfully challenged C.G. for cause before asking her any questions.

18 Although both the prosecution and the defense initially passed on excusing J.B. for cause she was eventually dismissed for cause due to her views regarding the death penalty. (See Wainwright v. Witt (1985) 469 U.S. 412; Witherspoon v. Illinois (1968) 391 U.S. 510.)

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Lastly, N.P.’s questionnaire responses raised no concerns about viewing case-related photographs. Even so, the prosecutor asked N.P., who was pregnant, “If you were to learn that this case probably will call for the examination of extremely graphic, somewhat, and gruesome photographs, would that — is there any possibility that that might have some [effect] on your pregnancy?”

It is clear from this record that the treatment of these prospective jurors provides no indication of racial bias — even assuming it is appropriate to consider the questioning of these prospective jurors in evaluating the peremptory challenge to A.E. (See Battle, supra, 11 Cal.5th at p. 783 [rejecting a similar argument as lacking record support].) The prosecutor’s failure to question J.B. regarding her reaction to graphic photos was understandable in light of the trial court’s earlier voir dire. J.B. told the trial court she did not “think [she] would be for the death penalty” but indicated that her position might change due to feelings she associated with viewing depictions of graphic violence and the childhood trauma she had suffered. This response suggested that any strong reaction J.B. might have to depictions of violence made her a better juror for the prosecution than she would otherwise be. The prosecutor could have concluded from this answer that it would be unnecessary for him to inquire further into J.B.’s reactions to graphic photographs, and more prudent to focus on her views regarding the death penalty. As for C.G., the prosecutor successfully excused her prior to asking any questions, making any comparison between her and J.M. inapt.

Regarding the alleged disparity in how the prosecutor phrased his questions, both the questions posed to J.M. and how they were articulated were reasonable in light of her questionnaire response that she “wouldn’t want to see the photos” in this case and her subsequent answers to the trial court’s questions, in which, among her other responses, she analogized looking at graphic photos to getting a

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shot. The prosecutor’s questioning of J.M. “was not outside the norm of typical questioning.” (Battle, supra, 11 Cal.5th at p. 783.) Moreover, the prosecutor’s statement to N.P. — who, again, had not indicated any concerns about viewing graphic photos in her questionnaire responses — that jurors would be called upon to examine “extremely graphic, somewhat, and gruesome photographs” was similar to how the prosecutor presented the photos to J.M., further undermining any suggestion of bias. (See ibid. [declining to attach significance to “subtle phrasing variations” in a prosecutor’s questions].) Indeed, N.P. alone was asked whether viewing the photos might have health consequences.

Considering the totality of the circumstances, we conclude that defendant has failed to make a prima facie showing of discriminatory intent. Carefully “examining the record for obvious race-neutral reasons for the prosecutor’s peremptory strikes that would ‘ “necessarily dispel any inference of bias” ’ ” reinforces this conclusion. (Johnson, supra, 8 Cal.5th at p. 510, fn. 7.) A.E.’s voir dire responses, regarding how the possibility of exoneration would affect her ability to impose the death penalty, constitute a race- neutral reason for her excusal that is “ ‘apparent from and “clearly established” in the record’ ” (Rhoades, supra, 8 Cal.5th at p. 431) and would function to “definitively undermine any inference of discrimination that [we] might otherwise draw from viewing[, for example,] the statistical pattern of strikes in isolation” (ibid.).19

19 Defendant challenges this court’s practice of upholding on appeal a trial court’s finding that a defendant failed to establish a prima facie case of discrimination if there was an obvious race-neutral reason or reasons in the record for the peremptory excusal of a particular prospective juror. We reject defendant’s position that this practice is somehow inconsistent with Batson and subsequent high

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As described earlier in evaluating defendant’s Batson/Wheeler claim, in her jury questionnaire A.E. stated both that the death penalty was used too often and too seldom, further explaining that “People are accused [and] then come to find out they were innocent [and] released.” In subsequent questioning by the trial court, A.E. said she would not automatically refuse to vote for the death penalty but reiterated that “people are often given the death penalty and then later on found out that they are not guilty because of the DNA results or — situation.” Upon questioning by the defense, A.E. indicated an ability to vote for the death penalty when appropriate. But then, when questioned by the prosecutor, A.E. stated that she believed it was possible for a postconviction exoneration to occur in this case. She also answered “[p]robably not” when asked whether, “having no reasonable doubt with regard to [defendant]’s guilt, if you thought it

court precedent. As we explained in Rhoades, supra, 8 Cal.5th 393, in considering race-neutral reasons for a peremptory challenge “ ‘that are apparent from and “clearly established” in the record [citations] and that necessarily dispel any inference of bias’ ” (id. at p. 431), an appellate court is not merely “imagin[ing] race-neutral reasons the prosecutors might have given” (id. at p. 430) because to do so “would go beyond our proper role in assessing the prima facie case” (id. at p. 431). Yet “when the record of a prospective juror’s voir dire or questionnaire on its face reveals a race-neutral characteristic that any reasonable prosecutor trying the case would logically avoid in a juror, the inference that the prosecutor was motivated by racial discrimination loses force.” (Ibid., italics added.) We further stressed “that in considering these grounds on appeal we do not suggest that a trial court evaluating a Batson-Wheeler prima facie case should search the record for reasons for the peremptory challenges instead of asking the attorney who exercised them for his or her reasons as part of a second-step inquiry.” (Id. at p. 431, fn. 16.) Because an appellate court can examine the record in more detail than a trial court during jury selection, “[w]hat is the soundest and most practical approach for trial courts is not necessarily the soundest and most practical approach for appellate courts, and vice versa.” (Ibid.)

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was an appropriate case, could you vote to sentence him to death?” and indicated that, in considering penalty, she would “always” have the possibility of an erroneous guilt-phase verdict in the back of her mind.

It is apparent from the record that A.E.’s answers to questions regarding the death penalty constituted an “ ‘obvious’ ” basis for a peremptory challenge. (Rhoades, supra, 8 Cal.5th at p. 431, italics omitted.) We have repeatedly found that “[a] prospective juror’s reluctance to vote for a penalty verdict of death is a permissible, race- neutral reason for exercising a peremptory challenge.” (People v. Elliott (2012) 53 Cal.4th 535, 561; see also Battle, supra, 11 Cal.5th at p. 779; Rhoades, at pp. 431–432; People v. Cash (2002) 28 Cal.4th 703, 725 [“possible reluctance to vote for death” constitutes a permissible race-neutral reason for a peremptory challenge in a capital case].)

The dissent discounts A.E.’s stated reservations about imposing the death penalty, describing them as having “nominal significance” because they purportedly “concerned a circumstance — lack of DNA evidence — that would not arise in this case.” (Dis. opn. of Evans, J., post, at p. 19; see id. at pp. 21–22 [“in this case, lack of DNA evidence was not a factor”].) But the prosecutor certainly would not have to agree with the dissent’s view of the strength of DNA evidence in this case (dis. opn. of Evans, J., post, at pp. 21–22), nor would the prosecution have been able to precisely predict — at the time of jury selection — how the evidence would unfold at trial. Indeed, the DNA evidence was heavily contested at trial and continues to serve as the basis for several claims on appeal.20 Notwithstanding the dissent’s

20 Moreover, A.E. did not say she had concerns about imposing the death penalty only in those cases in which there was a “lack of DNA evidence” (dis. opn. of Evans, J., post, at p. 19). Regardless of the basis for A.E.’s expressed apprehension, we have previously recognized that

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views, we remain persuaded that “any reasonable prosecutor” (Rhoades, supra, 8 Cal.5th at p. 431) in a capital trial presumably would want to avoid A.E. as a prospective juror when she said she “[p]robably [could] not” vote to impose the death penalty even if she “thought it was an appropriate case” for doing so based on the evidence.21

a prospective juror’s reluctance to impose the death penalty due to concerns that the person sentenced might actually be innocent is a race-neutral reason for exercising a peremptory challenge. (See Battle, supra, 11 Cal.5th at p. 780 [citing prospective juror’s observation that it would be “ ‘so inhumane to execute someone for something that they didn’t do’ ”; this comment “clearly conveyed that she worried about being involved in a capital trial involving an innocent defendant”]; People v. Panah (2005) 35 Cal.4th 395, 441 [prospective juror’s comment that she would need to be “ ‘absolutely sure’ ” before she could impose the death penalty was a nondiscriminatory reason for excusing her].) 21 The dissent contends that the identified race-neutral reason for excusing A.E. is undermined by “the fact that seated, White jurors shared Prospective Juror A.E.’s apprehensions about the death penalty.” (Dis. opn. of Evans, J., post, at p. 22.) But the example cited, involving Juror No. 125130, is unavailing. This juror told the court, “There’s always misconceptions, you know. Lines crossed. There has [sic] been cases where they have to come before a court and do all of this and they’re actually innocent.” The juror provided this response when the court asked whether the fact that defendant had been arrested or charged with the crime is evidence of his guilt; it was a reflection on the juror’s willingness to keep an open mind, not an apprehension regarding imposition of a death sentence. This juror’s views do not resemble A.E.’s expressed apprehensions over the death penalty. Indeed, none of the seated jurors maintained the similarly sweeping position that they probably could not vote to sentence defendant to death even if the prosecution had proved its case beyond a reasonable doubt. We therefore disagree with the dissent’s assertion that A.E.’s concerns were “similar enough to those voiced by White seated jurors” that the trial court should have “require[d] the

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The fact that A.E. said she would not automatically vote in favor of life without the possibility of parole does not alter our analysis. “[E]ven when a prospective juror has expressed neutrality or a favorable opinion on the death penalty, the prosecutor is not required to take that juror’s answers ‘ “ ‘at face value’ ” ’ when ‘ “other statements or attitudes of the juror suggest that the juror has ‘reservations or scruples’ about imposing the death penalty.” ’ ” (Battle, supra, 11 Cal.5th at p. 779.) As the dissent acknowledges, “we have previously held that reluctance and equivocation in imposing the death penalty are race-neutral reasons that can justify striking a prospective juror.” (Dis. opn. of Evans, J., post, at p. 18.) Here, A.E.’s responses as a whole reflected a race-neutral characteristic that any reasonable prosecutor trying the case would presumably and logically want to avoid in a juror. (See Rhoades, supra, 8 Cal.5th at p. 431.)

Defendant counters that at the time he objected under Batson, there was nothing to distinguish A.E.’s responses about her views concerning the death penalty from those of Juror E.H. and Alternate Juror E.B., each of whom he claims expressed similar concerns in their written questionnaires about the certainty of proof required before voting for the death penalty. (See Rhoades, supra, 8 Cal.5th at p. 432, fn. 17 [discussing the role of comparative juror analysis in reviewing a first-stage Batson challenge].) E.H. stated that the death penalty “should be used only if the crime is without a doubt proven and the

prosecutor to provide reasons for striking her.” (Id. at p. 23.) To the extent the dissent contends that the trial court did not afford defendant the opportunity to highlight similarities between A.E.’s answers and the answers of other prospective jurors, “If there was additional information [defendant’s] counsel wished to adduce in support of the Batson/Wheeler motion at trial, it was his responsibility to say so at the time.” (People v. Shove (Aug. 13, 2026, S161909) ___ Cal.5th ___, ___.)

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crime is disturbingly inhumane.” E.B. stated that “if you’re going to take someone[’]s life you better be 100% certain they deserve it.” During voir dire, however, E.H. clarified that in referring to “without a doubt” in her questionnaire, she meant “beyond a reasonable doubt,” and she stated without qualification that she could vote for death if she concluded that it was the appropriate penalty. E.B., meanwhile, consistently stated during voir dire that she had no conscientious objections or personal beliefs that would lead her to refuse to vote for the death penalty regardless of the evidence and she agreed that depending on the evidence and the law, she would be “open” to voting for either death or life without the possibility of parole. These responses render defendant’s comparisons unpersuasive. (See Reed, supra, 4 Cal.5th at pp. 1002–1003.)

In sum, after independently examining the record and considering all relevant circumstances, we conclude the record does not support an inference that the prosecutor’s peremptory challenge of Prospective Juror A.E. was based on racial discrimination.

III. GUILT PHASE ISSUES

A. Evidence of Other Sexual Offenses Defendant makes several challenges to the admission of other uncharged sexual offenses pursuant to Evidence Code section 1108 and related jury instructions. Each argument is without merit.

1. Five incidents of rape against four victims Over defendant’s objection, the trial court admitted evidence of five other sexual assaults that defendant committed, four before and one after Woolley’s homicide.

a. 1973: Two incidents involving I.T.

At trial, I.T. identified defendant as the person who raped her on two occasions. I.T. testified that she knew defendant as a former

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neighbor. Her prior husband had entered into a “loose business relationship” with defendant to put on a dance at the fairgrounds in Lancaster, California. One day in 1973, I.T. made arrangements to go to defendant’s house in Lancaster to pick up $50 he owed I.T. and her former husband. When she arrived, there were four or five other men present whom she recognized as policemen. Defendant walked I.T. to his bedroom where she assumed the money was kept. I.T. described defendant as “very strong.” After a brief conversation, defendant tried to remove her clothes, and despite I.T.’s protests, raped her by force. I.T. did not scream or shout because she believed the other men in the house were drinking and was concerned that the situation would “escalate into something even worse.” After the rape, defendant said something like, “I guess you really didn’t want this,” and then let her go. I.T. did not report the incident to police as she felt it would just damage her marriage.

Months later, at about 3:00 a.m. one morning in May, I.T. was sleeping at her house when defendant knocked at her door. When I.T. asked who was at the door, defendant identified himself and asked her for some coffee because he had been driving a long distance and falling asleep at the wheel. I.T.’s husband was out of the country, and her two-year-old daughter was asleep in one of the bedrooms. I.T. did not drink or make coffee and was not thinking clearly. She told defendant to go into the kitchen and make it while she sat in the living room. When defendant went into the living room, he reached for I.T. and she started resisting, telling him “no” numerous times. Defendant wrestled I.T. to the floor, took her by the hand when she tried to get up, and forced her into a bedroom. Defendant threw her on the bed, removed her housecoat, and twisted her arms behind her. Defendant raped I.T. as she struggled and dug her nails into his arm. Defendant finally stopped, got up, and left her house. I.T. reported the assault to the sheriff’s department.

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b. 1976: Incident involving S.R.

At trial, S.R. identified defendant as the man who raped her in December 1976 when she was living in Lancaster. She testified that she had car trouble after attending a holiday party one evening. S.R. began walking down the road in search of a service station or house. Defendant stopped and offered S.R. a ride to find a place to make a phone call. Defendant drove to a convenience store and told S.R. not to get out of the car, not to look at him, and to keep her head down. Defendant went into the store, returned to his car, and then drove S.R. to a dirt road in the desert. He threatened to kill S.R. if she did not do what he told her. When S.R. tried to exit the car, defendant grabbed her by the hair. Defendant slapped S.R. in the face, pulled her hair, called her a “fucking white bitch,” and punched her with a closed fist. Defendant forced S.R. to have sexual intercourse with him. After the assault, S.R. “battl[ed]” with defendant when she refused to perform oral sex and she managed to escape from the car. Defendant caught S.R. as she tried to run and kicked her numerous times and hit her in the face. Defendant then got in his car and drove away.

S.R. reported the assault to the sheriff’s department, identified defendant as her assailant from a photographic lineup, and provided details about the car defendant drove. Investigators took photographs of the impressions defendant’s shoeprints left on S.R.’s side and back.

c. 1976: Incident involving K.S.

K.S. testified regarding a sexual assault in December 1976. She identified defendant at trial as her assailant. K.S. testified that she was 19 or 20 years old at the time and lived in Lancaster. K.S. previously lived in a foster home with C.D., defendant’s wife at the time. One day, K.S. was driving down a road and saw defendant, whose car had broken down. She told defendant that she was on her way to see his wife and that she would give him a ride. When they

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arrived at defendant’s home, his wife was not there. K.S. decided to wait for defendant’s wife to arrive and sat on a sofa with defendant. After about 10 minutes, K.S. got up to leave. Defendant walked to the door, locked it, and told K.S. “You’re going to be fucked by a [n]*****,”22 grabbed her by the hair and pulled her into a bedroom. Defendant restrained K.S. by tying or holding her arms above her head, slapped her a few times, and violently bit her breast and the inside of her thigh. Defendant told K.S. that she would remember this for the rest of her life and threatened that if she told anyone her dead body would be found in the desert. Over K.S.’s protest, defendant performed oral sex on her and raped her. K.S. reported the crimes to the sheriff’s department but did not identify defendant as the perpetrator because she was afraid for her life. Within a few weeks, after K.S. read about S.R.’s rape in a newspaper, K.S. contacted the sheriff’s department and identified defendant as the individual who raped her.

d. 1982: Incident involving L.B.

L.B. testified that she lived in San Mateo in July 1982. One evening she went to a local nightclub to dance and saw defendant, whom she knew as “Larry.” L.B. went to the club often and previously had danced with defendant. At defendant’s suggestion, L.B. left the club and went to a diner to meet defendant. They drove separately, and after each arrived at the diner, defendant told L.B. he wanted to talk with her. She got in his van, and within a short time, defendant made a statement about sex, which surprised L.B. because she and defendant had only danced together and made small talk at the club. L.B. screamed as defendant pulled and “jerked” her to the back of the van. He held her arms down and put his hand over her mouth to stop

22 Epithet redacted.

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her from screaming. Over L.B.’s protests, defendant had sexual intercourse with L.B. and performed oral sex on her by force. After defendant stopped, she sat in the front seat and talked with defendant for a period of time so she could get out of the van alive. She believed the sexual assault lasted a couple of hours. L.B. reported the sexual assault to police. At trial, L.B. identified defendant as the individual who sexually assaulted her.

2. Instructions to the jury At the conclusion of the guilt phase, the trial court instructed the jury with CALJIC No. 2.50.01 (2002 rev.), which provided: “If you find that the defendant committed a prior sexual offense, you may, but are not required to, infer that the defendant had a disposition to commit sexual offenses. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crimes for which he is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed prior sexual offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged crimes. If you determine an inference properly can be drawn from this evidence, this inference is simply one item . . . for you to consider, along with all of the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. Unless you are otherwise instructed, you must not consider this evidence for any other purpose.”

In addition, the trial court instructed the jury with CALJIC No.

2.50.1, as follows: “Within the meaning of [CALJIC No. 2.50.01], the prosecution has the burden of proving by a preponderance of the evidence that the defendant committed sexual offenses other than that for which he is on trial. [¶] You must not consider this evidence for any purpose unless you find by a preponderance of the evidence

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that the defendant committed the other sexual offenses. [¶] If you find other sexual offenses were committed by a preponderance of the evidence, you are nevertheless cautioned and reminded that before a defendant can be found guilty of any crime charged or any included crime in this trial, the evidence as a whole must persuade you beyond a reasonable doubt that the defendant’s guilty of that crime.”

3. Constitutionality of Evidence Code section 1108 and related jury instructions Defendant contends that the admission of evidence of prior sexual offenses under Evidence Code section 1108 and the related jury instruction (CALJIC No. 2.50.01 (2002 rev.)) improperly allowed the jury to find that he was predisposed to commit sexual offenses based on a preponderance of the evidence and then use that finding to infer that he was guilty of the offenses in this case, in violation of the federal Constitution’s due process guarantee. Defendant specifically contends that CALJIC No. 2.50.01 should require evidence that the charged and uncharged sexual offenses share distinctive common marks as required for admission of evidence for similar purposes under Evidence Code section 1101. We have previously rejected these arguments. (See People v. Falsetta (1999) 21 Cal.4th 903, 907–908, 922 (Falsetta) [upholding constitutionality of Evid. Code, § 1108]; accord, People v. Dworak (2021) 11 Cal.5th 881, 900 (Dworak); see also People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford) [the 1999 version of CALJIC No. 2.50.01 correctly stated the law; the 2002 revision to CALJIC No. 2.50.01 adding the instruction’s penultimate sentence is an “improvement”]; id. at p. 1014 [the 1999 revision to CALJIC No. 2.50.01 “adequately confines the weight and significance of uncharged offenses within constitutional bounds by warning . . . that the uncharged offense is ‘not sufficient by itself to prove beyond a reasonable doubt that [the defendant] committed the charged

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crime’ ”].) Defendant concedes as much and offers no persuasive reason to reconsider our holdings.23 Relatedly, defendant makes a facial challenge to CALJIC No.

2.50.1 on the ground that it might confuse the jury when considered with the instruction on circumstantial evidence (CALJIC No. 2.01), which instructs the jury that inferences essential to establish guilt must be proved beyond a reasonable doubt. 24 Essentially, defendant asserts that because the jurors were permitted under CALJIC No. 2.50.01 to infer based on a preponderance of evidence that a defendant committed one (or more) of the other sexual offenses, they must have

23 Relatedly, we reject defendant’s argument that we must modify the standard of proof to comport with due process. (See, e.g., Falsetta, supra, 21 Cal.4th at pp. 919, 924; People v. Fitch (1997) 55 Cal.App.4th 172, 184; cf. People v. Carpenter (1997) 15 Cal.4th 312, 382 (Carpenter) [with other-crimes evidence, “The preponderance of the evidence standard adequately protects defendants”].) 24 The trial court instructed the jury with CALJIC No. 2.01, as follows: “[A] finding of guilt as to any crime may not be based on circumstantial evidence unless approved circumstances are not only, one, consistent with the theory that the defendant is guilty of the crime, but, two, cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation that points to the defendant’s innocence and reject that interpretation that points to his guilt. [¶] If, on the other hand, one interpretation of the evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

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been confused in applying CALJIC No. 2.01, which reminded the jurors that “before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt.” We disagree.

When presented with a claim that an instruction is ambiguous, “we review the challenged language to inquire whether there is a reasonable likelihood that the instruction caused the jury to misconstrue or misapply the law.” (People v. Thornton (2007) 41 Cal.4th 391, 436.) We conclude there is no such reasonable likelihood here.

Defendant conflates the concepts of an inference that can be drawn from evidence of other sexual offenses and evidence as a whole that establishes a defendant’s guilt beyond a reasonable doubt. CALJIC No. 2.50.01 informed the jury that it could “infer” from evidence of defendant’s other sexual offenses that he committed the charged crime. The instruction did not state such an inference itself constituted proof beyond a reasonable doubt. The jury was also instructed under CALJIC No. 2.00 that “[a]n inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence.” “But a logical deduction is not the same as proof beyond a reasonable doubt. No reasonable jury would assume that this inference, i.e., this logical deduction, substituted for proof beyond a reasonable doubt.” (People v. Loy (2011) 52 Cal.4th 46, 75 (Loy).)

Defendant asks us to reconsider our decision in Loy, supra, 52 Cal.4th at page 75, because assertedly, the distinction we made in that case constitutes a “source of confusion” regarding the jury’s application of CALJIC Nos. 2.50.01 and 2.01. Defendant asserts jurors would have difficulty distinguishing between the facts

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introduced to prove by a preponderance of the evidence that a defendant has a certain disposition to commit a certain type of crime, allowing for an inference that the defendant did commit such a crime (Evid. Code, § 1108) and the facts that must be established beyond a reasonable doubt to prove a defendant’s guilt of the charged offenses.

We decline to reconsider Loy. As given here, CALJIC No.

2.50.01 informed the jurors that if they determined an inference properly could be drawn from evidence of the other sexual offenses, that inference would be “simply one item for you to consider, along with all of the other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.” In turn, CALJIC No. 2.50.1 reminded the jury that a conviction for any of the charged crimes must be based on proof beyond a reasonable doubt notwithstanding any finding by the jury that defendant committed other sexual offenses based on proof that satisfied the preponderance of the evidence standard. Nothing in CALJIC No. 2.50.1 suggested that the jury could base a guilty verdict solely on an inference drawn from a finding that defendant committed other sexual offenses. The instruction, considered along with CALJIC No. 2.01, emphasized the jury’s duty to base a finding of guilt on no less than proof beyond a reasonable doubt. We presume jurors understood and followed the instructions given. (People v. Ramirez (2021) 10 Cal.5th 983, 1008 (Ramirez).) Accordingly, we conclude there is no reasonable likelihood that CALJIC No. 2.50.1 confused the jury.25

25 Defendant contends the prosecutor asserted that the evidence of other sexual offenses admitted under Evidence Code section 1108 was sufficient to prove his guilt of the charged offenses, which otherwise required proof beyond a reasonable doubt. The prosecutor stated: “Now, let us exercise our logic for a moment. We know that a serial

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We likewise reject defendant’s argument that any confusion assertedly arising from CALJIC No. 2.50.1 extended to the penalty phase. He notes that “[t]he same facts that allowed jurors to conclude that [he] committed the sexual assault offenses at guilt under a preponderance standard had to be proven beyond a reasonable doubt during the penalty phase when considered under Penal Code section 190.3, factor (b).” This instruction, however, “is not the first time jurors have been asked to apply a different standard of proof to a predicate fact or finding in a criminal trial. [Citations.] As we do in each of those circumstances, we will presume here that jurors can grasp their duty — as stated in the instructions — to apply the preponderance-of-the-evidence standard to the preliminary fact identified in the instruction and to apply the reasonable-doubt standard for all other determinations.” (Reliford, supra, 29 Cal.4th at p. 1016.)

rapist lived next door to a woman who was murdered in the course of a sexual assault. Logically, logically our reason tells us we need to know a little more. [¶] No coincidence could be that fantastic that a serial rapist would live next door to a woman who was murdered during the course of a rape or attempted rape, but yet somebody else could be responsible. [¶] We really need to know nothing more. But, of course, there is a lot more. But I submit to you if it went no further, the evidence against Larry Hazlett is overwhelming.” The prosecutor then said, “But what else do we know?” and described the DNA evidence that had been admitted at trial.

We do not perceive a reasonable likelihood that this argument caused the jury to assign undue weight to the evidence regarding the prior sexual assaults. The jury was admonished that if there was any conflicting statement by counsel made during argument concerning the law, the jury was to follow the court’s instructions. The court also properly instructed the jury concerning the prosecution’s burden of proof regarding the other sexual offenses and the charges. As noted in the main text, we presume the jurors followed those instructions. (Ramirez, supra, 10 Cal.5th at p. 1008.)

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Finally, defendant objects to CALJIC No. 2.50.01 as argumentative in violation of his due process rights because even assuming that defendant’s disposition to commit a sexual offense was properly before the jurors, “the instruction singled out this evidence and invited the jurors to draw conclusions that [he] was guilty of the charged crime.” In support, but without citation to the appellate record, defendant asserts the instruction “invited the jurors to make factual inferences that [defendant] entered the victim’s apartment with the intent to rape and acted in accordance with that intent to commit the crime charged” and thereby “present[ed] the prosecutor’s theory.” The claim lacks merit.

CALJIC No. 2.50.01 is a limiting instruction that informs the jury concerning its permissible application of evidence of other sexual offenses and admonishes the jury that “[u]nless you are otherwise instructed, you must not consider this evidence for any other purpose.” The instruction is written in neutral, nonspecific terms; it does not specify the evidence of other sexual offenses or identify the charges for which a defendant is on trial. In Reliford, supra, 29 Cal.4th at page 1014, we observed that “[u]nder CALJIC No. 2.50.01, evidence of the uncharged offense may support the inference that defendant had a disposition to commit the charged offense which, in turn, may support the inference that he was likely to commit and did commit the charged offense.” We noted that the instruction is not compulsory and “merely reiterates that the jury may, but is not required to, draw the inferences described.” (Ibid.) In this respect, the instruction properly and logically informs a jury how to consider any evidence of other sexual offenses that satisfies the preponderance of evidence standard in the context of the overall charge to the jury — that is, as stated succinctly in CALJIC No. 2.50.01, “determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.” Contrary to defendant’s assertions, the instruction

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neither expressly nor impliedly directs or invites the jury to draw from evidence of other sexual offenses specific inferences that support the prosecution’s theory of the case, e.g., that defendant entered Woolley’s apartment with intent to rape. (See People v. Daniels (1991) 52 Cal.3d 815, 870 [instructions that are neutrally phrased but “ask the jury to consider the impact of specific evidence” may be rejected as argumentative].) We therefore conclude that defendant’s challenge to the instruction as argumentative lacks merit.

4. Admission of evidence of other sexual offenses Defendant contends the trial court abused its discretion in admitting evidence of the five uncharged sexual offenses. Defendant specifically argues that the other sexual offenses were not sufficiently probative of his guilt concerning Woolley’s murder and that their prejudicial effect substantially outweighed any probative value they had. We conclude the trial court did not abuse its discretion in admitting evidence of the uncharged sexual offenses under Evidence Code section 1108.

a. The trial court’s ruling The trial court conducted a hearing under Evidence Code section 402 to determine the admissibility of the evidence of five uncharged sexual offenses involving defendant. Over defense objection, the trial court admitted evidence of the sexual assaults involving I.T. (two incidents), S.R., K.S., and L.B., ruling the evidence was admissible pursuant to Evidence Code section 1108. The trial court explained:

“In this particular case, all the incidents occurred between ’73 and ’82, within a nine-year period. They’re remote today, but so is the . . . instant offense. They’re all within the same time period. So I could not in this case find remoteness as to the acts. If this had happened last year, something 30 years ago might be remote, but these all happened in the same time period.

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“I also note that each of the victims, these four ladies, was Caucasian, as is Ms. Woolley.

“I also note that — I forgot to ask [L.B.] her age, and I don’t think it’s in the record, but I will — it does appear to me that since her incident occurred 22 years ago she was in her 20s when it happened. Now, I could be wrong. If I am, please — she looks like she’s in her 40s to me. The other victims were 20 — let’s see. The lady from this morning was 33, so she was older, but the other ones were, I believe, 20 and 22. [¶] . . . [¶]

“Three of them were acquainted with the defendant. It’s my understanding that Ms. Woolley lived in the same apartment complex with the defendant, so she’s acquainted with him. In fact, I know I read the transcript of the confession — the admissions that we already talked about, but I think there is (sic) even some statements in there that he was acquainted with her or knew who she was. [¶] . . . [¶]

“In this particular case, um, I don’t think the prejudice outweighs the probative value. I think clearly it’s relevant. It will not take an undue amount of time. We spent about an hour and 40 minutes. I understand the [d]efense will — I don’t think the People will take much longer than they did during the [Evidence Code section] 402 [hearing], but even if the [d]efense took four times the amount of time they took we’re only still talking about four or five hours, which will be . . . less than, from what I gather, 20 or 15 percent of the whole trial. So it will not take an undue amount of time.

“The [jurors are] simply not going to be confused or misled in this case. They will see four different witnesses plus the deceased in this case. They’ll see them separately. They’re not going to be confused.

“[The prior incidents are] all relevant under [Evidence Code section] 1108. . . . I think, given the overall circumstances, it would

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be improper to exclude them as irrelevant, so they will be admitted into evidence.”

b. Legal principles

The applicable legal principles are well established.

“ ‘[E]vidence of a person’s character’ is generally inadmissible ‘when offered to prove his or her conduct on a specified occasion.’ (Evid. Code, § 1101, subd. (a).) That general rule does not ‘prohibit[] the admission of evidence that a person committed a crime . . . or other act’ to prove something other than a person’s ‘disposition to commit such an act.’ (Id., § 1101, subd. (b).)” (People v. Baker (2021) 10 Cal.5th 1044, 1088 (Baker).) “Evidence Code section 1108 provides an exception to the general rule [articulated in Evidence Code section 1101] and permits evidence that a defendant accused of a sexual offense has committed another sexual offense, potentially showing a propensity to do so. (See id., § 1108, subd. (a).)” (Id. at p. 1089.) This exception requires that the evidence is not otherwise inadmissible pursuant to Evidence Code section 352. (Baker, at p. 1089.)

Evidence Code section 352 “sets out the general rule that ‘[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.’ [Citation.] It follows that if evidence satisfies the requirements of [Evidence Code] section 1108, including that it is not inadmissible under [Evidence Code] section 352, then the admission of that evidence does not violate [Evidence Code] section 1101.” (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823 (Daveggio and Michaud).)

“To determine whether [Evidence Code] section 1108 evidence is admissible, trial courts must engage in a ‘careful weighing process’

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under [Evidence Code] section 352. [Citation.] ‘Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.’ ” (Daveggio and Michaud, supra, 4 Cal.5th at pp. 823–824.)

“ ‘Evidence is not prejudicial, as that term is used in a[n Evidence Code] section 352 context, merely because it undermines the opponent’s position or shores up that of the proponent. The ability to do so is what makes evidence relevant. . . . The prejudice that [Evidence Code] section 352 “ ‘is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a person or cause on the basis of extraneous factors.’ ” ’ ” (People v. Doolin (2009) 45 Cal.4th 390, 438–439; accord, Baker, supra, 10 Cal.5th at p. 1089; Daveggio and Michaud, supra, 4 Cal.5th at p. 824.) “In the context of Evidence Code section[] 1108 . . . , a defendant’s propensity to commit sexual offenses or domestic violence is not an extraneous factor; it is relevant to the guilt of the accused — and evidence tending to show that propensity has probative value.” (Baker, at p. 1089.) “Like any ruling under [Evidence Code] section 352, the trial court’s ruling admitting evidence under [Evidence Code] section 1108 is subject to review for abuse of discretion.” (People v. Story (2009) 45 Cal.4th 1282, 1295 (Story).)

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Defendant contends the evidence of the other sexual offenses was inadmissible due to insufficient similarities to the charged crime; potential confusion of the jury; the burden its admission imposed on the defense; the likelihood of undue prejudice; and the availability of less prejudicial alternatives. We address each contention below and conclude the trial court did not abuse its discretion in admitting evidence of the other sexual offenses.26 c. Similarity of the evidence Defendant contends the evidence of other rapes committed against I.T., K.S., S.R., and L.B. did not show a distinctive type of crime that supported the inference that defendant raped (or attempted to rape) and killed Woolley in this case. Specifically, defendant argues that Woolley was a stranger to him whereas he allegedly had a prior relationship with three of the four rape victims and had talked with a fourth victim, S.R., for an extended period of time in his car before he raped her. He further asserts the circumstances of other sexual assaults did not involve a pattern of violence that allowed for an inference that he broke into a stranger’s (Woolley’s) home, hid in the bathtub, and raped and killed her by ligature strangulation. Finally, defendant asserts the trial court improperly considered that the victims were all White when determining similarities among the offenses.

We find no error in the admission of this evidence. Here, as we have said before, “defendant’s argument ignores the distinction between admissibility under Evidence Code section 1101[, subdivision] (b), which requires a sufficient degree of similarity between charged and uncharged offenses, and admissibility under

26 Though addressed individually, defendant’s arguments do not show error even when viewed in the aggregate.

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Evidence Code section 1108, which does not. As we have observed, although lack of similarity is relevant to the court’s decision whether to exclude Evidence Code section 1108 propensity evidence as more prejudicial than probative, that factor is not dispositive.” (People v. Merriman (2014) 60 Cal.4th 1, 41–42.) “The proper focus of the trial court’s inquiry is on the type of sex offense at issue (here, forcible rape), and differences in the manner in which the acts were committed or in the characteristics of the victims, while potentially relevant, are not dispositive.” (Dworak, supra, 11 Cal.5th at pp. 901–902.) Further, we explained in Falsetta that “the probative value of ‘other crimes’ evidence is increased by the relative similarity between the charged and uncharged offenses, the close proximity in time of the offenses, and the independent sources of evidence (the victims) in each offense.” (Falsetta, supra, 21 Cal.4th at p. 917.)

Here, the five other sexual offenses “were not entirely dissimilar.” (Loy, supra, 52 Cal.4th at p. 63.) Evidence of the five forcible rapes of four women tended to show that using violence, defendant previously sexually assaulted women who were in their twenties or thirties and were acquainted with or had previously talked briefly with him. The evidence was probative on the question of defendant’s guilt for the forcible rape or attempted rape of 20-year-old Woolley, who was sexually assaulted and violently strangled to death within the nine-year period that the other victims were sexually assaulted. Moreover, contrary to defendant’s assertions, Woolley was not a complete stranger to him. Although there was no evidence defendant and Woolley had ever met, defendant lived in the same apartment complex as Woolley, in which the back window of his apartment faced her apartment. Defendant also told investigators that he had observed three people moving Woolley’s belongings into her apartment, and that although he did not really know the victim, he recalled her possibly being Caucasian or Hispanic, and that she

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may have had a fiancé. There was no abuse of discretion on this ground.

Furthermore, the court’s consideration of the victims’ race when determining similarities does not show an abuse of discretion. Defendant made racial epithets to two of the victims that highlighted their race, as well as his own. Defense counsel even acknowledged during closing argument, when arguing that the offenses did not have “an intent to kill” like Woolley’s murder, that the “purpose” of the Evidence Code section 1108 offenses “might have been, you know, to dominate and to degrade and the racial component and all of that.”

Defendant also argues that the court should have excluded the 1973 and 1982 assaults because of their alleged remoteness in time from the 1978 crime. But as the trial court reasoned, the 1973 and 1982 offenses were not particularly remote from the 1978 charged murder. (See, e.g., People v. Robertson (2012) 208 Cal.App.4th 965, 992 [discussing other-act offenses found not to be too remote]; People v. Branch (2001) 91 Cal.App.4th 274, 284 [“No specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible”].)

d. Potential for confusion of the jury Defendant argues that evidence of other sexual offenses was inadmissible because it could have confused the jurors and distracted them in determining the question of guilt for the charged murder. Defendant asserts the jury could have been confused by the presentation of evidence of other sexual offenses because defendant had not been apprehended and punished for the prior criminal conduct, and the jury’s deliberations regarding the charges here could have been affected by a sense that defendant had wrongly escaped accountability for these past crimes. The claim is without merit.

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“The Legislature has determined that this evidence [of other sexual offenses] is ‘ “particularly probative” ’ in sex cases.” (Loy, supra, 52 Cal.4th at p. 61.) In this case, the jury had to determine whether defendant killed Woolley during the commission of a rape or attempted rape. “Rather than distracting the jury, this evidence assisted it in these inquiries. ‘The central issue in these cases commonly involves not just whether the conduct took place as the [prosecutor alleged], but whether the defendant was the one who perpetrated it. [Evidence Code s]ection 1108 assists the jury’s task by allowing the accused’s sexual misconduct history to be considered for whatever light it might shed on these issues . . . .’ [Citation.] Here, . . . the victim . . . was unable to describe the conduct that [led] to her death. But, if anything, this circumstance makes the evidence all the more necessary. ‘The necessity for admitting this particularly probative evidence that exists when the alleged victim’s credibility might be questioned can be no greater than the necessity that exists when the victim was killed and thus cannot even tell her story.’ ” (Id. at pp. 61–62.)

As previously noted, the jury was instructed regarding how to properly consider evidence admitted pursuant to Evidence Code section 1108. Again, we presume jurors understood and followed those instructions. (Ramirez, supra, 10 Cal.5th at p. 1008.) In speculating that the jury went astray, defendant offers no citation to the record that demonstrates the jurors in this case were confused by the evidence of other sexual offenses or considered the evidence for an improper purpose. In addition, in carefully considering admission of the proffered evidence of other sexual offenses under Evidence Code section 352, the trial court considered, among other factors, the likelihood of confusing or misleading the jurors. It concluded there was no such potential in admitting the evidence because the evidence of the five incidents of rape would be presented separately through the

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testimony of each victim, with I.T. recounting two incidents of rape. Here again, defendant has shown no abuse of discretion.

e. Burden to the defense

As stated, the uncharged sexual offenses occurred in 1973 (I.T.), 1976 (S.R. and K.S.), and 1982 (L.B.). Defendant contends the allegations posed an undue burden on the defense given their age, the late discovery about them, and their previously untested nature.

In support of his argument, defendant emphasizes that he received police reports concerning the 1976 sexual assaults only shortly before his trial. About three weeks before trial, the prosecutor informed the court that reports regarding the 1976 incidents had been “destroyed pursuant to statute and routine destruction” but that he had provided the defense with newer reports based on recent interviews with the victims, which was all he had. On the day of the Evidence Code section 402 hearing, however, the prosecutor explained that his investigator located copies of the 1976 police reports from the Los Angeles County District Attorney’s Office, and that he had forwarded that discovery to defense counsel. Defense counsel argued that “doesn’t leave much time for an investigation,” especially in light of a previously unknown note from someone indicating that S.R. was too drunk to identify her assailant. The court offered defense counsel “a couple more days to try to track that note down,” acknowledging the potential importance of what it said. Counsel did not ask for additional time from the court.

Defendant contends that evidence of the other offenses should have been excluded because the delayed discovery made defending against the allegations unduly burdensome. He asserts the defense needed time to investigate S.R.’s potential intoxication on the night of her rape; how that may have impaired her identification and, later, her memory; and defendant’s alibi on the night she was attacked. He

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further asserts the defense needed time to investigate his social relationship with K.S. Defendant also argues that the incident report regarding I.T.’s rape did not contain “what she said to the officer at that time.” Defendant contends that without time to conduct a thorough investigation, he was unable to conduct effective cross- examination of these witnesses.

Regarding the offense against I.T. from 1973, defendant does not establish why he did not have enough time to conduct a thorough investigation. Defense counsel conceded the prosecutor provided sufficient notice of the five rape incidents under Evidence Code section 1108, subdivision (b). Moreover, the original reports for the 1973 and 1982 offenses were attached to the complaint and arrest warrant filed in December 2002, nearly a year and a half before trial began. The defense therefore had many months to interview I.T., including about anything she may have said to the police the night of the incident.

It is true that defendant did not know, until the prosecution located and turned over the original report regarding the S.R. incident, that someone had made a notation suggesting she was too intoxicated to identify her assailant. The trial court gave the defense extra time to investigate this issue, however. Defense counsel did not request additional time, and defendant does not now explain why two days was insufficient to alleviate any alleged burden to the defense. Additionally, in response to the late discovery, defense counsel requested and received permission to conduct cross-examination “that would normally not be called for in a[n Evidence Code section] 402 [hearing].” At that hearing, counsel cross-examined S.R. about her rape and identification of defendant as the perpetrator, an examination that comprises approximately three to four pages of the reporter’s transcript on appeal. At trial, on cross-examination, counsel asked S.R. only whether “everything [she’d] talked about today, that all happened back in 1976; is that correct?”

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Regarding the other three rape victims, counsel conducted substantial cross-examination of each at the Evidence Code section 402 hearing, at trial, or both. As defendant concedes, each victim gave substantially similar testimony at the Evidence Code section 402 hearing and at trial.

In short, defendant fails to explain how he was unfairly burdened by the late discovery of the original reports or the remoteness of the offenses, or how he was subsequently prevented from effectively cross-examining any of the rape victims. Accordingly, we conclude defendant has not established an abuse of discretion in failing to exclude the evidence on this ground.

f. Undue prejudice

Defendant contends the evidence of the uncharged sexual offenses was substantially more prejudicial than probative and thus should have been excluded. He asserts that the probative value of the five other rapes was minimal and that the admission of this evidence “likely was used far too expansively” in that the prosecutor was allowed to portray defendant as a serial rapist who was likely to have committed any sexual crime. This, defendant insists, permitted jurors to put aside any doubts about the prosecution’s evidence and conclude that he raped or attempted to rape Woolley in this case. He further asserts the trial court failed to consider or appropriately weigh the effects of how the allegations of an African-American man raping a White woman “could inflame the jurors’ emotions and prejudice their assessment of culpability,” leading to heightened prejudice.

As discussed above, the jury was properly instructed regarding how it could consider the evidence of other sexual offenses and admonished that propensity evidence “by itself” is insufficient for conviction (CALJIC No. 2.50.01). Once again, we presume jurors understood and followed these instructions. (People v. Chism (2014)

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58 Cal.4th 1266, 1299 (Chism).) In addition, although the underlying facts of five incidents of forcible rapes against four women were disturbing, this evidence was not unduly prejudicial in the context of this case, and the trial court found that the other sexual offense evidence was “simply not going to be confus[ing],” in part, because four witnesses would testify separately about the five sexual assaults (with I.T. recounting two incidents). (See, e.g., Baker, supra, 10 Cal.5th at pp. 1090–1100 [admission of defendant’s past acts of sexual assault and domestic violence not unduly prejudicial in capital murder trial]; People v. Jones (2012) 54 Cal.4th 1, 51 [finding no error in the admission of defendant’s prior commission of forcible oral copulation and assault with the intent to commit rape because, “[a]lthough serious crimes, they certainly were not more serious or inflammatory than the charge that defendant raped, sodomized, paralyzed, viciously beat, and strangled [the victim] to death before setting her house on fire”].) In all, given the significant probative value of the evidence of the five other rapes, the trial court did not abuse its discretion in finding that any potential for prejudice did not call for its exclusion. (See Loy, supra, 52 Cal.4th at p. 62.)

Insofar as defendant contends the trial court failed to consider or weigh what he characterizes as inflammatory aspects of the otheracts evidence, the record does not support this contention. In explaining its ruling, the trial court stated, “In this particular case, um, I don’t think the prejudice outweighs the probative value.” This statement does not, as defendant asserts, show the court failed to consider the racially charged nature of these offenses. A trial court “need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing functions under Evidence Code section 352.” (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) It follows that a trial court that does explain it has weighed

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the prejudicial and probative value of evidence need not also state all the specific factors it took into consideration in performing this weighing. The record supports a finding that the court was well aware of its responsibilities and considered all relevant factors in making its decision.27 g. Availability of less prejudicial alternatives Defendant contends that as a less prejudicial alternative to introduction of evidence of all five sexual assaults, the trial court should have excluded evidence of the two rapes of I.T. in 1973 and the rape of L.B. in 1982 because charges were never brought based on those assaults, excluded the two 1976 rapes because of the late discovery of the police reports regarding these incidents, or both. At a minimum, defendant argues, the court should have excluded inflammatory language that had been used in connection with two of the assaults.

Regarding the rapes from 1973 and 1982, those three uncharged sexual assaults bore more similarity with acquaintance rape than with an unlawful entry and violent offense against a stranger. The trial court carefully considered this factor at the hearing under Evidence Code section 402 and found the evidence of each other sexual assault incident to be relevant propensity evidence within the meaning of Evidence Code section 1108. It thus determined that given the overall circumstances of this case, exclusion of any of this evidence would not be appropriate and that evidence of each of the other sexual offenses was relevant and admissible under Evidence Code section 1108. The fact that these offenses went unprosecuted also does not

27 The trial court relied on Falsetta, supra, 21 Cal.4th 903 in its analysis, and expressly stated Falsetta’s requirement to consider the “likely prejudicial impact [of the evidence] on the jurors” and “inflammatory details surrounding the offense[s].”

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support defendant’s claim that the evidence was inadmissible in light of the different standards that apply to the admissibility and use of this evidence as a component of the proof adduced against a defendant on the one hand, and the People’s ultimate burden to convict a defendant by a standard of proof beyond a reasonable doubt on the other. (People v. Cottone (2013) 57 Cal.4th 269, 287–288.) Regardless of whether a district attorney chose not to prosecute, what matters is that sufficient evidence of defendant’s responsibility for the rapes was presented to the jury under Evidence Code section 1108. And, as previously discussed, the belated production of police reports notwithstanding, the trial court did not abuse its discretion when it admitted evidence of the 1976 rapes.

Defendant additionally argues that the trial court should have excluded evidence of his statement to S.R. calling her “a fucking white bitch” and his statement to K.S., “You’re going to be fucked by a [n]*****.”28 As to these statements, defendant argues, first, that the court should have excluded them because the victims’ testimony was unreliable, noting that S.R. was possibly intoxicated at the time of her assault and K.S. admitted that she lied about not knowing the identity of her assailant in her initial report to the police. But to the extent the victims’ credibility was at issue, this was a matter for the jury to decide. (See People v. Maciel (2013) 57 Cal.4th 482, 519 [“ ‘ “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of

28 Insofar as defendant argues that he had insufficient time to adequately investigate these statements, his argument fails for the same reasons we reject his broader claim of an undue burden attributable to when the defense received discovery from the prosecution. (See ante, part III.A.4.e.)

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the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends” ’ ”].)

Defendant also contends the trial court should have excluded the statements as unduly prejudicial. A trial court “in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “ ‘The “prejudice” which [Evidence Code] section 352 seeks to avoid is that which “ ‘ “uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.” ’ ” ’ ” (People v. Chhoun (2021) 11 Cal.5th 1, 29.) Defendant’s own comments do not rise to the level of invoking the jury’s bias against him. (See People v. Quartermain (1997) 16 Cal.4th 600, 628 [“The unfortunate reality is that odious, racist language continues to be used by some persons at all levels of our society. While offensive, the use of such language by a defendant is regrettably not so unusual as to inevitably bias the jury against the defendant”].) Further, the prosecutor did not dwell on either comment in closing argument, mentioning each statement only once. Additionally, defendant’s comments provided context for the rapes. As testified to, these statements underscored the nonconsensual nature of these incidents and provided additional recalled details the jury could have regarded as significant in determining whether to credit the witnesses’ accounts. The trial court did not abuse its broad discretion in admitting these statements.29

29 Defendant’s related challenge to these statements as having been admitted in violation of the California Racial Justice Act of 2020 (Pen. Code, § 745) is discussed later in this opinion.

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5. Challenge to CALJIC No. 2.50.01 Defendant contends CALJIC No. 2.50.01, as applied to the facts of this case, violated his due process rights because it allowed the jury to make the impermissibly broad and assertedly irrational inferences that (1) he had a disposition to commit rape; and (2) based on this disposition, he was likely to have committed, and did commit, the crimes in this case. He asserts there was insufficient evidence to support either inference. We disagree.

The United States Supreme Court’s decision in Ulster County Court v. Allen (1979) 442 U.S. 140, explained the evidentiary value of permissive inferences and the standard to apply in assessing their validity under the due process clause of the United States Constitution: “The most common evidentiary device is the entirely permissive inference or presumption, which allows — but does not require — the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant. [Citation.] In that situation the basic fact may constitute prima facie evidence of the elemental fact. [Citation.] When reviewing this type of device, the Court has required the party challenging it to demonstrate its invalidity as applied to him.” (Allen, at p. 157; id. at p. 163 [the validity of permissive statutory presumptions should be based on “an evaluation of the presumption as applied to the record before the Court”].) “Because [a] permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference.” (Id. at p. 157.) “[I]n criminal cases, the ultimate test of any [evidentiary] device’s constitutional validity in a given case remains constant: the device must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the

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State, to find the ultimate facts beyond a reasonable doubt.” (Id. at p. 156.) We conclude the permissive inferences permitted under CALJIC No. 2.50.01 are rational and did not undermine the jury’s ultimate factfinding duty in this case.

Here, if the jury found true by a preponderance of the evidence that I.T., S.R., K.S., or L.B. had been raped by defendant, it reasonably could infer that defendant had a disposition to commit rape. (Reliford, supra, 29 Cal.4th at p. 1013 [when evidence is admitted under Evid. Code, § 1108 and not subject to exclusion under Evid. Code, § 352, “it may support an inference . . . that the defendant is predisposed to commit sex offenses”].) Further, based on its finding that defendant had a disposition to commit rape, the jury could reasonably infer there was a likelihood that defendant committed the rape or attempted rape of Woolley in this case. In this way, evidence of defendant’s prior sexual offenses is circumstantially relevant to the question whether he committed the charged crime. (Falsetta, supra, 21 Cal.4th at p. 915.) As emphasized above, however, any evidence of defendant’s other sexual assaults, or any inference drawn therefrom, was insufficient standing alone for the jury to have found him guilty of the charged offense beyond a reasonable doubt. (See discussion, ante, pt. III.A.3.) In sum, the inferences permitted to be drawn by the jury under CALJIC No. 2.50.01 were rational and did not undermine the jury’s decision on the ultimate questions of fact, i.e., whether the People proved defendant’s guilt for the charged murder and the truth of the special circumstance allegations beyond a reasonable doubt.

B. Sufficiency of the Evidence Regarding the First Degree Murder Conviction and the Rape-Murder and Burglary-Murder Special-Circumstance Findings Defendant contends his death judgment should be reversed because the evidence is insufficient to support his conviction of first degree murder. He additionally argues there is insufficient evidence

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to support the rape-murder and burglary-murder special- circumstance findings. Defendant’s contentions are without merit.

In reviewing a challenge to the sufficiency of the evidence, we examine “the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict — i.e., evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “ ‘We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890 (Covarrubias).) “ ‘The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 324.)

In this case, the jury was instructed that to convict defendant of first degree murder, the prosecution had to prove beyond a reasonable doubt that Woolley’s killing was willful, deliberate and premeditated, or the killing occurred during the commission or attempted commission of rape or burglary. (§ 189.) In addition, under the law in effect at the time of Woolley’s murder, the jury was required to find that the murder was willful, deliberate, and premeditated to sustain a special circumstance allegation based upon an enumerated felony (here, rape or burglary). (Former § 190.2, subd. (c)(3)(iii), (v), added by Stats. 1977, ch. 316, § 9, p. 1258.) We address defendant’s sufficiency of the evidence claims by first examining his first degree

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murder conviction based on theories of felony murder (rape and burglary) and deliberate and premeditated murder; and then the rape-murder and burglary-murder special-circumstances findings.

Preliminarily, the prosecutor commented during argument that certain facts about Woolley’s homicide were unknown. For example, the prosecutor stated that it was unknown how defendant entered Woolley’s apartment. The prosecutor theorized that defendant may have simply knocked on Woolley’s front door and she opened the door believing her boyfriend returned with the milk, or defendant may have crawled through the kitchen window opening and hid behind the curtain in the bathtub before attacking her. The prosecutor also mentioned that it was unclear whether the refrigerator in the kitchen had been moved as part of the investigation, and whether defendant had been successful in actually raping the victim. “It is elementary, however, that the prosecutor’s argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury.” (People v. Perez (1992) 2 Cal.4th 1117, 1126; accord, People v. Clark (2011) 52 Cal.4th 856, 947.) The jury may draw reasonable inferences from the evidence that may be inconsistent with the prosecution’s theory of the case.

1. Felony murder based on commission or attempted commission of rape

Under the felony-murder rule, murder that is “committed in the perpetration of, or attempt to perpetrate” rape is first degree murder. (§ 189, subd. (a); People v. Guerra (2006) 37 Cal.4th 1067, 1129 (Guerra).)30 The same rule applied at the time of the crimes in this

30 As relevant here and at the time of the crimes in this case, the felony-murder rule was substantively the same with respect to underlying felonies of rape and, as discussed in the next section,

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case with respect to an underlying felony of rape. (See § 189, as amended by Stats. 1970, ch. 771, § 3, pp. 1456–1457.)

“The mental state required for felony murder is ‘ “the specific intent to commit the underlying felony” ’ [citation], and ‘ “the evidence must establish that the defendant harbored the felonious intent either prior to or during the commission of the acts which resulted in the victim’s death.” ’ [Citation.] First degree felony murder does not require proof of a strict causal or temporal relationship between the felony and the killing. [Citation.] Rather, a killing has been ‘committed in the perpetration of’ the underlying felony within the meaning of section 189 ‘if the killing and the felony are parts of one continuous transaction.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 61–62 (Brooks).)

At the time of the crimes in this case, section 261 provided in relevant part as follows: “Rape is an act of sexual intercourse, accomplished with a female not the wife of the perpetrator, under either of the following circumstances: [¶] . . . [¶] . . . Where she resists, but her resistance is overcome by force or violence; [or] [¶] . . . Where she is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution . . . .” (§ 261, as amended by Stats. 1970, ch. 1301, § 1, p. 2405; see Story, supra, 45 Cal.4th at p. 1300.)

“An attempt to commit rape has two elements: the specific intent to commit rape and a direct but ineffectual act done toward its commission. [Citation.] The act must be a direct movement beyond preparation that would have accomplished the crime of rape if not frustrated by extraneous circumstances. [Citation.] An actual

burglary. (See § 189, as amended by Stats. 1970, ch. 771, § 3, pp. 1456–1457.)

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element of the offense, however, need not be proven.” (Guerra, supra, 37 Cal.4th at p. 1130.) “Intent to commit rape is the intent to commit the act against the will of the complainant. [Citations.] A defendant’s specific intent to commit a crime may be inferred from all of the facts and circumstances disclosed by the evidence.” (Ibid.) The jury was instructed on the crimes of rape and attempted rape consistent with the above authorities.31 The prosecution evidence established that Woolley was killed by strangulation with a sock ligature in her apartment sometime between the evening of October 24, 1978, and early the next morning.

Based on the totality of the evidence presented, the jury reasonably could have inferred that sometime after Woolley and Rush

31 The trial court instructed the jury according to the law at the time of the crime as follows: “A rape is an act of sexual intercourse with a female without her consent who is not the wife of the perpetrator, where, one, she resists, but her resistance is overcome by force or violence, and/or two, she is prevented from resisting by threats of great and immediate bodily harm, accompanied by the apparent power of the perpetrator to carry out such threats. [¶] The female is required to resist no more than is necessary to make it reasonably clear that she is unwilling to engage in an act of intercourse. [¶] An attempt to commit a crime consists of two elements, namely, a specific intent to commit the crime, and a direct but ineffectual act done towards its commission. [¶] In determining whether this act was done, it is necessary to distinguish between mere preparation, on the one hand, and the actual commencement of the doing of the criminal deed, on the other. Mere preparation, which may consist of planning the offense or of devising, obtaining or arranging the means for its commission, is not sufficient to constitute an attempt. However, acts of a person who intends to commit a crime will constitute an attempt where those acts clearly indicate a certain, unambiguous intent to commit that specific crime. These acts must be an immediate step in the present execution of the criminal design, the progress of which would be completed unless interrupted by some circumstance not intended in the original design.”

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left Woolley’s apartment to go to Rush’s house and before they returned to the apartment, defendant surreptitiously entered the apartment through the kitchen window opening and turned off the kitchen light; from there, defendant hid in the bathtub while Woolley and Rush were gone until after Rush said goodnight to Woolley and drove away from the apartment. In support of such a theory, the prosecution’s evidence established the following: defendant had the opportunity to view the front of Woolley’s apartment from his living room window; defendant’s admissions to investigators included observations regarding Woolley’s habitation of her apartment, including on the night of the murder; the refrigerator was normally placed in front of the 4-foot by 3-foot kitchen window opening and could easily be moved by pushing it on its wheels; Rush and Woolley “thought it was strange” and were alarmed to find the kitchen light was turned off when they returned to the apartment from Rush’s house because they believed they had turned it on before leaving; before saying goodnight to Woolley, Rush walked throughout the apartment, checking the rooms in the apartment except the bathroom and dining room; Woolley usually kept the shower curtain in the open position, but the shower curtain was discovered drawn shut on the morning her body was discovered; the bathtub contained dirty shoe prints; the refrigerator was positioned against a wall in the kitchen instead of its normal position in front of the window opening with the blanket;32 and someone turned on the bedroom light as Rush drove away from the apartment.

32 The prosecutor acknowledged to the jury during argument that Rush did not notice the refrigerator out of place when he walked through the apartment before leaving, and that the refrigerator may have been moved away from the window opening and placed up against a wall during the investigation. The prosecutor further

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In addition, the jury reasonably could have inferred that when defendant entered Woolley’s apartment, he did so with the intent to rape her and acted in furtherance of this intent by hiding behind the curtain in the bathtub and later fatally attacking her inside her bedroom. When found, Woolley’s body was naked from the waist down except for the blue sock on her right foot, and her upper body was naked except for shirt sleeves covering each arm. Woolley’s legs were partially splayed, with her left foot entangled in the green bedspread, and her head was hanging over the side of the bed. We have stated in the context of sufficiency of the evidence challenges to support a conviction for a crime involving sexual assault that although “the circumstance of the victim’s being found partially or wholly unclothed is not by itself sufficient to prove a rape or an attempted rape has occurred, such a fact is not irrelevant and is one of the relevant circumstances.” (People v. Rundle (2008) 43 Cal.4th 76, 139.) Here, evidence that defendant’s DNA was extracted from the sock ligature and the semen stains on the underside of the green bedspread, considered in combination with evidence of the almost nude state of Woolley’s body and the sock ligature, “provides stronger evidence that a forcible rape or attempted rape occurred than where the body simply

acknowledged that it remained unknown how defendant exited Woolley’s apartment. The prosecutor suggested that the likely scenario was that after entering the apartment through the window opening, defendant moved the refrigerator back to its normal position in front of the opening and exited the apartment through the front door, which Woolley’s mother testified was unlocked when she entered the apartment to check on her daughter. The prosecutor further suggested that under these circumstances, Rush would not have noticed anything unusual in the kitchen when he looked around the apartment before saying goodnight to Woolley. We find this scenario plausible and in any event are mindful that the manner in which defendant exited the apartment is not an essential element of the charged offense or special circumstances.

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is unclothed.” (Ibid. [evidence that the victim’s body was nude considered with evidence her arms were physically restrained behind her back strongly suggested the defendant forcibly raped or attempted to rape the victim].) Further, that Woolley’s bedroom window was broken from the inside suggested that the sexual attack may have involved a struggle or a display of force intended to induce submission. The evidence as a whole provided a sufficient basis for the jury’s finding.33 In responding to this evidence, defendant argues, essentially, that rape or attempted rape cannot be established in this case because there was no evidence showing that he had any prior contact with the victim and the only physical wounds the victim suffered were caused by the ligature strangulation. This response fails to persuade.

33 The jury was not presented with evidence of an alternative theory that would explain the presence of defendant’s DNA on Woolley’s sock and the two semen stains on the bedspread. Also, as has been described, the prosecutor presented the jury with evidence that between 1973 and 1976, defendant committed a total of four rapes against three women — and then defendant raped a fourth woman in 1982. Based on this evidence, if the jury found by a preponderance of the evidence that defendant committed these other rapes, it could infer that defendant had a propensity to commit sexual offenses. In turn, the jury could consider any propensity so inferred as circumstantial evidence relevant to whether defendant intended to and did rape or attempted to rape Woolley and whether he killed her during a rape or attempted rape. (See Daveggio and Michaud, supra, 4 Cal.5th at p. 822; see also Falsetta, supra, 21 Cal.4th at p. 920 [“evidence of a defendant’s other sex offenses constitutes relevant circumstantial evidence that he committed the charged sex offenses”]; id. at p. 922 [in addition to the issue of propensity, “other crimes evidence . . . could be considered for any proper purpose, such as establishing defendant’s motive, intent, or identity (if those issues remain contested), or bolstering the . . . victim’s credibility”].)

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That defendant may not have had extensive prior contact with Woolley is not by itself inconsistent with the jury’s finding that a rape or attempted rape had occurred. (See, e.g., People v. Frazier (2024) 16 Cal.5th 814, 822–825.) And defendant’s denials of having known Woolley were called into question by his admissions to investigators that suggested he had at least familiarized himself with Woolley’s existence and life at the apartment complex during the two weeks she lived there. For example, as noted earlier, defendant admitted that his living room window had a view of Woolley’s apartment; he observed the number of people who helped Woolley move into her apartment; and he knew Woolley to be possibly Caucasian or Hispanic and as having had a “fiancé.” In addition, defendant admitted that on the night of the killing, he saw that Woolley’s porch light was on at 11:30 p.m. and off later, sometime during the night. Hence, although there was no evidence presented showing defendant was wellacquainted with Woolley, defendant’s admissions could have led to a reasonable inference that she had caught his attention and that he was attuned to her habits and comings and goings in the apartment complex.

Regarding the other evidentiary gap perceived by defendant, the lack of bruising on Woolley’s body (except that associated with the strangulation) is not fundamentally inconsistent with a rape or attempted rape. (See former § 261; see also Guerra, supra, 37 Cal.4th at p. 1132 [attempted rape does not require a physical sexual assault]; see also Carpenter, supra, 15 Cal.4th at p. 387 [rejecting the defendant’s argument that attempted rape requires “ ‘some physical conduct of a distinctly and unambiguously sexual nature’ ”].) Even when the absence of bruising is folded into the equation, the totality of the evidence was sufficient to establish defendant’s liability for felony murder under a theory of rape or attempted rape.

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For these reasons, we conclude the record discloses sufficient evidence for a reasonable trier of fact to find beyond a reasonable doubt defendant’s guilt of felony murder based on rape or attempted rape.

2. Felony murder based on commission or attempted commission of burglary

As relevant here, the felony-murder rule provides that a murder “committed in the perpetration of, or attempt to perpetrate” a burglary is first degree murder. (§ 189, subd. (a).)34 “Every person who enters any house, room, apartment, . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.” (§ 459, subd. (a).)35 The crime of burglary is complete upon unlawful entry with felonious intent, regardless of whether the intended felony is actually committed. (People v. Montoya (1994) 7 Cal.4th 1027, 1041– 1042 (Montoya).) The jury was instructed accordingly.

As discussed in the preceding section, there is sufficient evidence to support a first degree felony-murder conviction based on the theory that defendant killed Woolley in the perpetration of a rape or an attempted rape (§ 189). As relevant here, that theory was predicated on circumstantial evidence, including that defendant (1) entered Woolley’s apartment through the kitchen window opening sometime after Woolley and Rush left for Rush’s house and before they returned to the apartment, and (2) did so with the intent to commit rape. Necessarily, this evidence satisfies the definition of a completed

34 With respect to an underlying felony of burglary, a nearly identical felony-murder rule applied at the time of the crimes. (Compare § 189, subd. (a) with former § 189, as amended by Stats. 1970, ch. 771, § 3.) 35 A nearly identical version of this portion of the statute was applicable at the time of the crimes in this case. (§ 459, as amended by Stats. 1977, ch. 690, § 3.)

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burglary under section 459 and Montoya, supra, 7 Cal.4th 1027. We therefore conclude there is substantial evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that defendant formed the intent to commit rape before he entered Woolley’s apartment and before killing her. Accordingly, we conclude there is sufficient evidence to support defendant’s first degree felony- murder conviction based on commission of a burglary, with both crimes committed as parts of a continuous transaction. (Brooks, supra, 3 Cal.5th at pp. 61–62.)

3. Deliberate and premeditated murder “ ‘ “A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. . . . ‘Deliberation’ refers to careful weighing of considerations in forming a course of action; ‘premeditation’ means thought over in advance. . . . ‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.” ’ ” ’ (People v. Cole (2004) 33 Cal.4th 1158, 1224.)” (People v. Ghobrial (2018) 5 Cal.5th 250, 278 (Ghobrial).) Consistent with this definition, the trial court correctly instructed the jury concerning deliberate and premeditated murder pursuant to CALJIC No. 8.20.

“In People v. Anderson (1968) 70 Cal.2d 15, 26–27 . . . we identified three categories of evidence that tend to establish a premeditated and deliberate murder — planning, motive, and method. ‘But these categories of evidence . . . “are descriptive, not normative.” (People v. Perez (1992) 2 Cal.4th 1117, 1125.) They are simply an “aid [for] reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the result of preexisting reflection and weighing of considerations rather than

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mere unconsidered or rash impulse.” ’ ” (Ghobrial, supra, 5 Cal.5th at p. 278.) “[Anderson] did not refashion the elements of first degree murder or alter the substantive law of murder in any way.” (People v. Thomas (1992) 2 Cal.4th 489, 517.) In this case, the record discloses evidence, and reasonable inferences that can be drawn from that evidence, falling within all three categories.

With respect to planning, defendant argues that because the perpetrator used the nearest available item, Woolley’s sock, to accomplish the murder, the most that can be shown by the evidence is that the perpetrator acted spontaneously and meant to kill but not according to a preconceived plan. In support, defendant relies on People v. Rowland (1982) 134 Cal.App.3d 1, 9 (Rowland). The appellate court in Rowland held that although the evidence was clear that the defendant killed the victim, the manner of killing — ligature strangulation of the victim with an electrical cord the defendant found in the bedroom where the murder occurred — failed to show he “must have premeditated and deliberated the killing.” (Ibid.) In the court’s view, the defendant’s use of the electrical cord did not demonstrate that he had taken “ ‘thoughtful measures’ to procure a weapon for use against the victim.” (Id. at p. 8.)

In the present case, when considered with evidence of defendant’s motive and manner of killing, the jury reasonably could have found that in choosing to use Woolley’s sock as a ligature defendant’s actions reflected a careful weighing of considerations and were “directed toward, and explicable as intended to result in, the killing — what may be characterized as ‘planning’ activity.” (People v. Anderson, supra, 70 Cal.2d at pp. 26–27.)

With respect to motive, the jury reasonably could have inferred that defendant determined it was necessary to kill Woolley to prevent her from reporting his crimes and identifying him, “a motive it could

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reasonably conclude was imbued with deliberation and premeditation.” (People v. Memro (1995) 11 Cal.4th 786, 863.) In this vein, the prosecutor argued that “there weren’t any circumstances even back then where [defendant] could claim that [any rape or attempted rape] was consensual or that he had nothing to fear. He was toast if she lived, and so he strangled her.” (See People v. Lucero (1988) 44 Cal.3d 1006, 1019 (Lucero) [“The jury may have inferred that defendant killed [the victims] in order to avoid disclosure of his conduct”].)

The manner of killing also supports a finding of premeditation and deliberation. The evidence introduced at trial, including Dr. Hanks’s testimony, established that the force defendant applied to the ligature around Woolley’s neck “crushe[d] [her] necklace into the skin”; that Woolley was likely rendered unconscious anywhere from 20 to 30 seconds — and up to three minutes — after the sock ligature was initially applied to her neck; that death resulted in three to five minutes; that defendant’s DNA was found in the mixture of DNA embedded on the sock ligature; that the strangulation caused Woolley to suffer a circumferential wound on her neck, blood spots on her face, and hemorrhages in her eyes, thyroid gland, and neck muscles; and that the hemorrhaging occurred before Woolley’s death.

“This prolonged manner of taking a person’s life, which requires an offender to apply constant force to the neck of the victim, affords ample time for the offender to consider the nature of his deadly act.” (People v. Hovarter (2008) 44 Cal.4th 983, 1020.) “While ligature strangulation may not always evidence a premeditated murder,” a jury may view evidence of a strangulation “as a deliberate manner of killing sufficient to indicate a ‘preconceived design.’ ” (Lucero, supra, 44 Cal.3d at p. 1020, citing Rowland, supra, 134 Cal.App.3d at p. 9; People v. Bonillas (1989) 48 Cal.3d 757, 792 [“Ligature strangulation is in its nature a deliberate act”]; see also People v. Stitely (2005)

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35 Cal.4th 514, 543 [rejecting the defendant’s claim that the victim’s strangulation was “impulsive or accidental” despite the alleged “lack of any evidence that he procured a weapon in advance or planned the killing”]; People v. Solomon (2010) 49 Cal.4th 792, 815 [the defendant’s use of materials close at hand to bind his victims “does not preclude the inference that he thereafter considered a course of action to kill them”].)

We conclude from the foregoing that there was sufficient evidence for a finding beyond a reasonable doubt that Woolley’s murder was willful, deliberate, and premeditated.

4. Felony-murder special circumstances Defendant contends the evidence is insufficient to support either the rape-murder or burglary-murder special-circumstance true findings because the evidence of premeditation and deliberation was lacking — as was the evidence that the murder was committed during commission of a felony. We disagree.

Under the 1977 death penalty law, in order to find true a felony-

murder special circumstance, the jury was required to find that the murder was committed during the commission or attempted commission of any of the specified enumerated felonies, including rape and burglary as alleged here. (Former § 190.2, subd. (c)(3)(iii) [rape], (v) [burglary], added by Stats. 1977, ch. 316, § 9, p. 1258.) In addition, each felony-murder special circumstance required the jury to also find that the murder was willful, deliberate, and premeditated. (Former § 190.2, subd. (c)(3), added by Stats. 1977, ch. 316, § 9, p. 1258; People v. Robertson, supra, 33 Cal.3d at p. 48, fn. 14.) Finally, in People v. Green (1980) 27 Cal.3d 1, 61 (Green), this court held that application of the felony-murder special circumstance in the 1977 death penalty law requires that the defendant commit the act resulting in death “in order to advance an independent felonious purpose,” meaning that the

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defendant must not have perpetrated the underlying felony as “merely incidental to the murder.” (Ibid.; accord, People v. Nieves (2021) 11 Cal.5th 404, 466.) The evidence here was sufficient to satisfy the 1977 rape-murder and burglary-murder special-circumstances requirements.

a. Rape-murder special circumstance As explained ante, part III.B.2., there was sufficient evidence to uphold defendant’s first degree murder conviction under section 189 on a felony-murder theory based on commission of rape or attempted rape (former § 261). In addition, there was sufficient evidence to affirm defendant’s first degree murder conviction based on a theory that Woolley’s murder was deliberate and premeditated. (See ante, pt. III.B.3.) Further, based on the evidence at trial, the jury could reasonably have found that defendant killed Woolley in order to prevent her from reporting his crimes and identifying him, thus establishing that defendant killed Woolley “in order to advance an independent felonious purpose.” (Green, supra, 27 Cal.3d at p. 61.) Accordingly, we conclude sufficient evidence supports the rape- murder special circumstance.

b. Burglary-murder special circumstance The requirement that the murder be deliberate and premeditated (former § 190.2, subd. (c)(3)) is satisfied here because, as with the rape-murder special circumstance discussed in the preceding paragraph, the evidence was sufficient to prove beyond a reasonable doubt that Woolley’s murder was deliberate and premeditated. To satisfy the requirement under the 1977 law that the burglary committed was also first degree (former § 190.2, subd. (c)(3)(v)), we must assess whether the evidence that supports defendant’s burglary-murder felony-murder conviction under section 189 (see ante, pt. III.B.2.) demonstrates commission of a first degree

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burglary of Woolley’s apartment “with an intent to commit grand or petit larceny or rape.” (Former § 190.2, subd. (c)(3)(v), citing former § 460, subd. (1).) As discussed below, we conclude it does.

To satisfy the requirements for a first degree burglary as defined by the statute applicable at the time of the crimes, the prosecution was required to prove the burglary of Woolley’s apartment was “committed in the nighttime.” (§ 460, subd. (1), as amended by Stats. 1976, ch. 1139, § 206.5, p. 5120.) Here, the jury instructions specified nighttime as “between sunset and sunrise.”

The prosecution’s evidence established that (1) Woolley’s apartment was a single structure in the apartment complex located in an open space among multiple apartments and parking spaces; (2) defendant could view Woolley’s apartment from his living room window and was in a position to monitor her comings and goings; (3) defendant was at home during the evening of the murder and stated that he observed Woolley’s porch light was turned on at 11:30 p.m. and turned off sometime later; (4) on the afternoon before Woolley’s murder, Woolley and Rush spent about 45 minutes in Woolley’s apartment before leaving for Rush’s residence; (5) Rush and Woolley returned to the apartment after eating dinner at Rush’s house; and (6) Woolley was found the following morning wearing the same shirt Rush had last seen her wearing, with her shorts and underwear on the floor next to her bed.

Based on this evidence, the jury reasonably could have inferred that defendant was watching the apartment from his living room window during the evening of October 24, 1978, and waited until after dark — sometime after Woolley and Rush had left for Rush’s house — to gain entry into Woolley’s apartment in order to avoid detection. Specifically, the jury reasonably could have inferred that defendant entered Woolley’s apartment through the kitchen window and turned

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off the kitchen light to avoid revealing his presence inside the kitchen to someone outside who might know that it was not his apartment. Defendant’s calculated concern in this respect is consistent with his hiding in Woolley’s bathtub behind the shower curtain until after Rush left the apartment and defendant could attack Woolley in her bedroom. The jury could also reasonably infer, based on the fact that Woolley was still wearing the shirt she was wearing when Rush left and the shorts she had been wearing were nearby on the floor, that defendant entered her apartment after sunset, before Woolley had time to change out of her day clothes, but before sunrise.

For these reasons, we conclude there is sufficient evidence from which a reasonable trier of fact could have found beyond a reasonable doubt that defendant entered Woolley’s apartment during nighttime within the meaning of former section 460, subdivision (1). In addition, in light of the evidence supporting defendant’s first degree murder conviction based on a burglary-murder felony-murder theory (see ante, pt. III.B.2) and deliberate and premeditated murder (see ante, pt. III.B.3), the jury could reasonably have found that, similar to defendant’s commission of the rape or attempted rape of Woolley, defendant’s burglary of Woolley’s apartment with the intent to rape was not incidental to the murder and that defendant committed the murder in order to avoid detection for his crimes. (Green, supra, 27 Cal.3d at p. 61.) We conclude sufficient evidence supports the burglary-murder special circumstance.

Defendant also argues on appeal that the evidence was insufficient to establish that he committed a burglary within the meaning of the burglary special circumstance allegation because, even assuming he “went to [Woolley’s] apartment with a sexual intent,” he may not have intended to rape the victim; rather, defendant “may have [gone] to the apartment hoping to persuade the victim to have sex and committed the murder in a fit of rage when she refused.” As

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relevant here, the requisite intent for the burglary element of the burglary-murder special circumstance is “an intent to commit . . . rape” (former § 190.2, subd. (c)(3)(v)). Even if defendant had relied on such a theory at trial, the jury reasonably could have rejected any notion that defendant had hoped to persuade Woolley to have sex with him. That is, the prosecutor’s evidence was sufficient to prove that defendant entered Woolley’s apartment through the kitchen window when she was away and then hid behind a curtain in her bathtub until sometime after she returned and later retired to her bedroom. Objectively, these are not the actions of one hoping to persuade another to engage in a consensual sexual encounter. Moreover, while defendant’s comments indicated some familiarity with Woolley, he admitted to investigators that he “did not really know” Woolley and further recalled that she may have had a fiancé. In short, this implausible theory does not cast doubt on the sufficiency of the evidence.

C. Admission of Woolley’s Death Certificate and Testimony Regarding the Time of Death Defendant contends the trial court erred in admitting the death certificate and testimony of Dr. Hanks to establish the time of death. The death certificate was prepared by a physician who did not testify at trial. Dr. Hanks’s testimony regarding the time of death relied on out-of-court statements in an autopsy report prepared by another coroner who was not available at trial. We conclude any error in admitting the evidence was harmless beyond a reasonable doubt.

1. Background Dr. Ambrosecchia, who was deceased at the time of trial, performed the autopsy and prepared an autopsy report, which indicated that death occurred between 11:00 p.m. and 1:00 a.m. The autopsy report was not admitted into evidence. The death certificate

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was prepared by Dr. Richard Gervais and listed the cause of death as strangulation by ligature and the time of death as “about 11:30 P[.M. ]” Dr. Gervais did not testify at trial. The death certificate was admitted into evidence during the prosecution’s case- in-chief; at that time, the death certificate was admitted without objection from defense counsel but as discussed below, counsel later objected to the portion of the death certificate reflecting the time of death.

After the prosecution rested its case, defense counsel indicated that he intended to move under section 1118.1 to dismiss the murder charge on the ground the evidence was insufficient to establish the murder was deliberate and premeditated. Also, counsel sought dismissal of the burglary special circumstance allegation on the ground there was insufficient evidence for a jury to find the burglary was in the first degree. Counsel noted that at the time of the crimes in this case, a felony-murder special circumstance premised on commission or attempted commission of a burglary required that the burglary be committed during nighttime. He claimed that the time of death had not been established, and that the evidence presented reasonably supported the inference Woolley was killed after sunrise. (See former § 190.2, subd. (c)(3)(v), added by Stats. 1977, ch. 316, § 9, citing former § 460, subd. (1), as amended by Stats. 1976, ch. 1139, § 206.5 [first degree burglary].)

The trial court deferred a hearing on the defense motion until after the jury instruction conference. The prosecutor then moved to reopen the prosecution’s case to present additional evidence concerning the time of death. After hearing argument from the parties, the trial court granted the prosecutor’s motion. Defense counsel thereafter withdrew the defense motion to dismiss.

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Upon reopening the prosecution’s case-in-chief, the prosecutor recalled Dr. Hanks to testify regarding the time of Woolley’s death. Dr. Hanks testified that she had reviewed the autopsy report and the photographs that were taken at the time of the autopsy. One of the autopsy photographs depicted a wound that was consistent with a liver temperature test used to establish the time of death. Dr. Hanks testified that stomach contents can also be used to determine time of death, and that the autopsy report described Woolley’s stomach contents as “filled with a digested, creamy, tan food residue of no note,” “mean[ing] that the stomach was full of digested food.” Based on her experience and training, Dr. Hanks stated the stomach generally “takes between one and five hours to empty.” Given Woolley’s stomach was “full of digested food particles,” Dr. Hanks opined that “she ate a meal . . . a few hours before her death.” She also related that Dr. Ambrosecchia had indicated in the autopsy report that time of death occurred between 11:00 p.m. and 1:00 a.m. Based on her review of the autopsy report, Dr. Hanks concurred with that opinion. On cross-examination, Dr. Hanks testified that she did not rely on the liver temperature test indicated in the autopsy report because the result was not recorded.

After the defense rested its case, defense counsel objected to the portion of the death certificate that indicated time of death on grounds of hearsay and lack of foundation and requested it be redacted. In making the objection, counsel referenced Dr. Hanks’s related testimony. The trial court overruled counsel’s objection and denied the request to redact the death certificate, noting that the death certificate could be admitted under the official records exception to the hearsay rule under Evidence Code section 1281. Defense counsel did not further object regarding any time of death evidence.

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2. Harmlessness We do not need to determine whether the death certificate and the portion of Dr. Hanks’s testimony relating Dr. Ambrosecchia’s conclusions in the autopsy report were erroneously admitted at trial because any error in admitting this evidence was harmless when measured by either the standard for state law error or that applicable to a federal constitutional violation.

Defendant’s claim of error is premised on Crawford v.

Washington (2004) 541 U.S. 36 (Crawford), in which the United States Supreme Court held that in criminal prosecutions the Sixth Amendment confrontation clause bars the government from introducing “testimonial hearsay statements unless (1) there is a showing that the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine the declarant.” (People v. Perez (2018) 4 Cal.5th 421, 455.) In addition, defendant asserts that admission of the death certificate and Dr. Hanks’s testimony violated People v. Sanchez (2016) 63 Cal.4th 665, 686 (Sanchez) insofar as that decision held that “[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.”36 In Sanchez, we recognized that “improper admission of hearsay may constitute state law statutory error.” (Sanchez, supra, 63 Cal.4th at p. 698.) We ordinarily assess such error under People v. Watson

36 Notwithstanding defendant’s failure to object to the evidence at his 2004 trial, the claim is not forfeited. (See People v. Perez (2020) 9 Cal.5th 1, 14 [a defendant does not forfeit a Sanchez claim by failing to object at trial in a case predating that decision]; People v. Pearson (2013) 56 Cal.4th 393, 462 [a defendant’s failure to object does not forfeit a Crawford claim in a trial occurring before Crawford was decided].)

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(1956) 46 Cal.2d 818, 836, asking whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” “However, if the improperly admitted hearsay is also testimonial within the meaning of the high court’s confrontation clause jurisprudence (see, e.g., Crawford, supra, 541 U.S. at pp. 68–69), the error is assessed under the federal constitutional standard of Chapman v. California (1967) 386 U.S. 18, 24 . . . .” (People v. Valencia (2021) 11 Cal.5th 818, 840.) As the high court explained, the beneficiary of such an error has the burden to demonstrate beyond a reasonable doubt that the error did not contribute to the convictions. (Chapman v. California (1967) 386 U.S. 18, 24, 26 (Chapman).)

Defendant asserts that the erroneous admission of the portions of the death certificate and Dr. Hanks’s testimony relating the time of Woolley’s death was prejudicial in the guilt phase because evidence regarding when Woolley died was “crucial” to resolving the question whether the alleged burglary occurred at night (and was therefore first degree burglary), and, in turn, the truth of the burglary-murder special-circumstance allegation. Defendant contends that because Woolley’s body was not discovered until morning, her death did not necessarily occur at night. It follows, defendant asserts, that the burglary-murder special circumstance cannot be sustained absent the erroneous admission of evidence concerning the time of death. We disagree.

The question whether defendant committed first degree burglary within the meaning of the 1977 burglary-murder special circumstance did not turn on Woolley’s time of death. A burglary is complete upon unlawful entry with felonious intent. (See Montoya, supra, 7 Cal.4th at pp. 1041–1042.) As defined at the time of the murder in this case, a first degree burglary was a burglary of an inhabited dwelling committed at nighttime. (Former § 460, subd. (1);

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Stats. 1976, ch. 1139, § 206.5.) In denying defendant’s sufficiency of the evidence challenge to the 1977 burglary-murder special- circumstance true finding (see ante, pt. III.B.2), we concluded that the prosecution’s evidence, and the reasonable inferences that can be drawn from it, was adequate to prove beyond a reasonable doubt that defendant committed a first degree burglary by entering Woolley’s apartment through the kitchen window opening with intent to rape during nighttime and in particular, that defendant entered during nighttime in order to avoid detection. Hence, the prosecutor proved defendant committed first degree burglary without resort to evidence of time of death.

Moreover, the jury was properly instructed on the offense of first degree burglary in the context of the burglary-murder special circumstance, including that the defendant entered “between sunset and sunrise.” Because, as emphasized earlier, jurors are presumed to understand and follow the instructions given (People v. Buenrostro (2018) 6 Cal.5th 367, 431), we conclude the jury reasonably understood that it was evidence of the circumstances under which defendant entered the apartment — including the time of his entry, not the time of Woolley’s death — that determined whether the prosecutor had proved commission of a first degree burglary within the meaning of the 1977 burglary-murder special-circumstance allegation. Viewed in this context, any error in admitting the time of death evidence through the death certificate or Dr. Hanks’s testimony was harmless beyond a reasonable doubt under Chapman.

Defendant additionally insists the errors in admitting the time of death evidence were prejudicial because it was essential to the prosecution’s theory that defendant entered the apartment, hid behind the curtain in the bathtub, and waited for Woolley to return home. He asserts this theory supported other charges and allegations — that defendant entered the apartment with intent to

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rape, that he in fact raped or attempted to rape Woolley, and that her murder was deliberate and premeditated. Defendant asserts that because the prosecution’s evidence also showed Woolley and her boyfriend returned home after watching television at her boyfriend’s house, the prosecution’s theory “might have been possible” if Woolley had been killed at some time up to 11:30 p.m., as indicated in the death certificate. Defendant maintains that the prosecutor’s theory “is far less likely” if Woolley had been killed “at a later time,” because “the perpetrator undoubtedly would have been discovered before then.” In essence, defendant argues the erroneous admission of evidence of Woolley’s time of death was prejudicial because the time indicated on the death certificate made the prosecution’s murder theory at least “possible.”

That the prosecution’s murder theory is consistent with the time of death on the death certificate is of no consequence given that, as discussed ante, part III.B, the time of death did not enter into the jury’s calculus concerning the burglary-murder special circumstance allegation, or concerning any of the remaining charges or special circumstances allegations. Granted, in argument, the prosecutor commented that Woolley’s death occurred between 11:30 p.m. and 1:00 a.m. based on “the liver temperature test” and “even more strongly because of the contents of the stomach.” The statements were made as part of the prosecutor’s introductory remarks and were the only reference to the time of death based on either the death certificate or Dr. Hanks’s testimony relating Dr. Ambrosecchia’s conclusions in the autopsy report. The prosecutor did not urge the jury to rely on time of death evidence in deciding the charges in this case. Defendant’s speculation that the jury was persuaded by the prosecution’s theory based on its consistency with the death certificate’s time of death entry provides no ground for reversal. Notwithstanding defendant’s arguments to the contrary, we can say

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beyond a reasonable doubt that any error in admitting the death certificate and the portion of Dr. Hanks’s testimony relating time of death evidence from the autopsy conclusions “did not contribute to the verdict obtained.” (Chapman, supra, 386 U.S. at p. 24.)

Finally, defendant asserts the errors in admitting the death certificate and Dr. Hanks’s testimony relating the autopsy report conclusions were prejudicial because they affected the jury’s penalty determination. He contends that because “the time of death alleged in the death certificate and coroner’s report supported the prosecutor’s argument that [defendant] entered the victim’s house and waited for her to return,” the time of death evidence contributed to the creation of a particularly disturbing image for jurors to consider as “a powerful factor in aggravation.” This argument, too, is speculative.

Even without the allegedly erroneously admitted evidence, the jury would have been able to visualize this disturbing scenario based on the prosecution’s evidence and the reasonable inferences that can be drawn from it. The jury also was entitled to hear and consider the prosecutor’s theory of the circumstances of the crime, even though that also was disturbing. Moreover, the trial court gave CALJIC No. 8.85, which informed the jury concerning the factors to consider in determining penalty, including factor (a) under section 190.3, “[t]he circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true.” Thus, just as the death certificate and time of death testimony did not impact whether the jury determined that a burglary occurred, the evidence did not change the prosecutor’s theory that

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defendant waited inside Woolley’s apartment for her to return before assaulting and killing her.37 D. Admission of the Results of the Bedspread DNA Analysis Defendant claims the trial court abused its discretion when it admitted the results of the DNA analysis because the prosecution failed to account for flaws in the chain of custody. He further suggests that DNA found on the bedspread may not have been present in 1978, and that trial counsel rendered ineffective assistance by failing to bring evidence of this irregularity to the court’s attention during the hearing on his motion to exclude the evidence.

Before trial, defendant filed a motion to exclude “all physical evidence” in the case, including evidence obtained from the bedspread, bedsheets, and blue socks, because of alleged gaps in the chain of custody. At a hearing on the motion, defendant pointed to an inconsistency on written cards and reports: evidence was seized on October 25 and 26 in 1978, and the property cards indicated that evidence moved from the property room to examiner Diosi at the crime lab on November 30, but Diosi wrote in his report that he analyzed evidence on October 26 through October 28. Defendant also noted that evidence sat in the property room until 1999 when it was analyzed again, and while there was no documentation showing anything else happened with the evidence in the meantime, “we know that something happened to the property because at least some of the

37 We reject defendant’s argument that admission of this evidence was prejudicial because the time of death evidence corroborated Rush’s testimony and without it, the jury may have viewed Rush’s story more skeptically. Defendant’s argument relies on facts not before the jury; namely, the specific time that Rush may have left Woolley’s apartment. Without this information, the time of death evidence would have been less impactful than defendant argues.

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property turns up missing,” specifically a blood sample and vaginal swab. Defendant argued that there was a break in the chain of custody for all the evidence because some evidence went missing without any documentation to explain what happened to the evidence, including who touched it and whether it was analyzed.

The prosecution clarified that it only sought to introduce two pieces of seized evidence: the green bedspread and the blue sock. The prosecution presented several offers of proof, which the defense expressly said it accepted for purposes of resolving the pretrial motion. First, if criminalist Laskowski were called to testify, he would explain that in 1978, the crime lab was a part of the sheriff’s department and therefore, the property cards did not distinguish between the crime lab and the property room. Laskowski would also testify that he obtained the blue sock from the victim’s neck in the coroner’s facility on October 26, 1978, and brought it directly to the crime lab where he created the property card. After the crime lab completed its analysis, he brought the sock to the property room on January 8, 1979, as reflected on the property card.

The prosecution’s offer of proof also provided that if James Smith, a technical investigator with the sheriff’s department, were called to testify, he would explain that he obtained the green bedspread from the victim’s apartment and created the property card for it before taking the bedspread to the lab. If Diosi were called to testify, he would explain that he examined the green bedspread on October 25, 1978, and then took it to the property room on January 8, 1979, where the property room manager acknowledged receipt on the property card. Either Laskowski or Diosi would testify that between 1978 and the time of the hearing, the property room and crime lab were always locked and secured facilities, admission was granted only to persons working for the sheriff’s department or the district attorney, “and that every effort is made to prevent tampering with

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any evidence by any — or even contact with any evidence by anyone other than authorized personnel.”38 When the court inquired about the alleged missing evidence, the prosecutor stated that if called to testify, the chief criminalist would explain that in 1978, “the coroner’s office had a ‘nasty habit’ of making slides from swabs that they took and then throwing away the swabs, and that the slides in this case still exist, but he cannot speak to whether that occurred in this case.”

The prosecutor acknowledged that he did not have a complete set of property cards before him, and argued, “One thing is certain: If you accept everything that [defense counsel] said but you also accept my offer of proof with regard to what the testimony would be, every piece of evidence or — these two pieces of evidence, the only ones that are relevant, had to have been one of two places the entire time between October 25th, 1978, and the time that the evidence was analyzed. And that’s either in the Kern County Regional Criminalistics Laboratory or in the Kern County Sheriff’s Property Room, both secure facilities.” He further argued that “problems with chain of custody go to the weight, not the admissibility, unless the problems are so great that there is a reasonable possibility that it isn’t the same thing or that — or that there’s been some sort of tampering with it. Not a shred of evidence of that, your Honor. This evidence was either in the lab or the property room for all of those years.”

The trial court denied the motion to exclude the physical evidence at issue. The court reminded the parties, however, that

38 Defense counsel accepted the offer of proof as modified to provide that, insofar as individuals not working for the sheriff’s department or district attorney might have been provided with access to evidence stored in the property room, it was under the supervision of people working there.

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“whoever wants to introduce the evidence will have to show a chain” of custody during trial.

During trial, the parties stipulated that People’s exhibit No. 4, a green bedspread, was the bedspread depicted in a photograph of the crime scene and that it was the bedspread on which Woolley was found lying on October 25, 1978. The parties further stipulated that the bedspread was properly bagged, marked, and taken to the Kern County crime lab. Defense counsel agreed to this stipulation in exchange for a similar stipulation from the prosecution regarding a bedsheet that the defense later admitted into evidence.39 1. The trial court’s understanding of the legal standard Defendant asserts the trial court misunderstood the legal standard for evaluating a challenge to the chain of custody, but he is mistaken. During the hearing on the initial motion to exclude, the trial court did not state its reasons for denying the motion. This lack of explanation, however, does not imply what defendant suggests. “In the absence of evidence to the contrary, we presume that the court ‘knows and applies the correct statutory and case law.’ ” (People v. Thomas (2011) 52 Cal.4th 336, 361.)

Defendant points to comments from the court after his jury trial concluded. As part of his motion for a new trial, defendant alleged

39 The Attorney General asserts defendant forfeited this argument on appeal by stipulating to the chain of custody at trial. Defendant counters that the pertinent stipulation admitted only (1) that the bedspread admitted at trial was the same bedspread that Woolley was found on, and (2) that the bedspread was properly bagged, marked, and taken to the crime lab. Defendant regards the stipulation as not reflective of any further agreement that there was no tampering after the bedspread was brought to the crime lab. We assume that the claim has not been forfeited, and reject defendant’s claim that the trial court abused its discretion on the merits.

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ineffective assistance of counsel. Defendant told the court that “[t]he chain of custody or lack thereof was not attacked, as it should have been” and that he asked his attorneys to seek assistance from the FBI to examine the Kern County forensics laboratory’s protocol. In response, defense counsel explained that the defense “had no reason that we could articulate to the FBI to suspect that this county was manipulating evidence, other than this case itself,” and reminded the court that he presented arguments to the jurors challenging the DNA analyses the best way that he could, “but the jurors didn’t buy it.” When addressing defendant’s argument, the trial court said, “As far as the chain of custody and not calling in the FBI, I don’t know if the FBI would have done anything if . . . the [d]efense . . . had, in fact, called the — called the FBI. There was nothing there. They had — once the mother identified the bedspread, they — I think that’s when the chain of custody pretty much was complete. [¶] And then, apparently, the D.A. also stipulated to the chain of custody of the defense item that the [d]efense wanted in, the bed sheet. So I think that — I don’t have any complaints about the defense work in that regard.”

Defendant asserts the court’s comment about the chain of custody being complete once the mother identified the bedspread is proof that the court misunderstood the law by failing to consider the possibility of tampering, but he takes the court’s comment out of context. This discussion took place several weeks after the court ruled on defendant’s motion to exclude the evidence, in the context of a challenge asserting ineffective assistance of counsel. The court was not reviewing defendant’s previous motion to exclude evidence or speaking to its decision to deny the motion, and its comments do not imply that the court misunderstood the governing legal standard when it made that ruling.

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2. The prosecution’s burden Defendant next asserts the trial court abused its discretion when it admitted the DNA evidence because the prosecution did not meet its burden of demonstrating that there had been no tampering with the evidence.

“The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration.” (People v. Riser (1956) 47 Cal.2d 566, 580 (Riser).) “Undoubtedly the party relying on an expert analysis of demonstrative evidence must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering [citation], but it has never been suggested by the cases, what the practicalities of proof could not tolerate, that this burden is an absolute one requiring the party to negative all possibility of tampering.” (Ibid.) “ ‘ “The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” ’ ” (People v. Catlin (2001) 26 Cal.4th 81, 134 (Catlin).) “The trial court’s exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion.” (Ibid.)

Defendant points to the missing blood sample and vaginal swab as telling, noting that the prosecutor did not detail any protocols in place regarding how the lab secured evidence beyond stating that the facilities were always locked. His reliance on these missing samples is misplaced. The prosecution proffered that at the time of the offense,

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the coroner’s office often made slides from swabs and then threw away the swabs. He could not state whether that happened in defendant’s case, but he informed the court that the slides made from the samples still existed. Defendant asserts that if the court applied Riser, the prosecutor’s “admission” that the lab “habitually destroyed evidence” should have diminished the court’s reasonable certainty that there was no alteration here. The court inquired about the alleged missing evidence, however, and was satisfied with the prosecutor’s explanation. Further, the prosecutor was not seeking to admit evidence related to the missing swab and sample, and it was reasonable for the court to find that the coroner’s practice related to the swabs was irrelevant to the chain of custody for the sock and bedspread. Finally, Riser does not require the offering party to negate all possibility of tampering, only to show with reasonable certainty there was no tampering. The prosecution met this burden.

Defendant attempts to distinguish this case from our prior decisions upholding rulings that evidence could be admitted notwithstanding claims of a flawed chain of custody. (E.g., People v. Johnsen (2021) 10 Cal.5th 1116, 1161–1162; People v. Wallace (2008) 44 Cal.4th 1032, 1060–1061; People v. Richardson (2008) 43 Cal.4th 959, 1002–1003; Catlin, supra, 26 Cal.4th at pp. 133–136; People v. Williams (1989) 48 Cal.3d 1112, 1134–1135; Riser, supra, 47 Cal.2d at pp. 580–581.) Defendant argues that this court has never upheld a chain of custody challenge in which, like here, the prosecution did not present testimony from witnesses who knew firsthand how the evidence at issue was handled and who “provided concrete details regarding the security and handling of the evidence at issue, explained how . . . irregularit[ies noted by the defense] came to be, and showed why the irregularity did not undermine confidence in the analysis.”

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These decisions do not cast doubt on the trial court’s ruling.

Again, the pivotal question before the trial court was whether it was “ ‘ “reasonably certain that there was no alteration” ’ ” of the evidence. (Catlin, supra, 26 Cal.4th at p. 134.) Whether that test has been met depends on the particularized circumstances of each case. Here, at the motion in limine hearing, defense counsel accepted the prosecution’s offer of proof that either Laskowski or Diosi would, if called, testify that the crime lab and property room were both locked and secure facilities with restricted access. While defendant would require more detailed testimony regarding how the evidence was stored and who might have had access to it over a period of many years, on the facts of this case such testimony was unnecessary.

We acknowledge that, unlike in Riser and Catlin, here defendant did present evidence of destroyed or missing evidence by way of the vaginal swab and blood sample. Importantly, however, “defendant did not point to any indication of actual tampering” (Riser, supra, 47 Cal.2d at p. 581) of the evidence at issue. Nor did he explain how his semen sample may have been placed on the bedspread sometime after the bedspread was seized. As the Attorney General observes, defendant provided hair samples and a saliva sample to investigators when the file was reopened in 1999; he did not provide them with a semen sample. To the extent defendant argues that the prosecution nonetheless failed to account for every possible irregularity in the chain of custody, it did not need to do so. “[W]hen it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.” (Ibid.)

3. Ineffective assistance of counsel Defendant contends that counsel rendered ineffective assistance by failing to raise “their strongest evidence of an irregularity in the

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chain” during the hearing on his motion. He notes that during trial, counsel argued that bedspread stains appeared for the first time in 2000 and that the degradation of the DNA suggested it did not date back to 1978, but counsel failed to mention either of these facts during the chain of custody hearing. He argues that counsel had no tactical reason for failing to bring these facts to the court’s attention.

“ ‘The two-prong standard governing claims of ineffective assistance of counsel is well settled. “ ‘ “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome.” ’ ” ’ ” (People v. Barrett (2025) 17 Cal.5th 897, 969 (Barrett).) We presume until otherwise demonstrated that “ ‘ “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” ’ ” (People v. Centeno (2014) 60 Cal.4th 659, 674–675 (Centeno).) “When the record on direct appeal sheds no light on why counsel failed to act in the manner challenged, defendant must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for counsel’s act or omission.’ ” (Id. at p. 675.)

We have in the past recognized that counsel may have tactical reasons to not move to exclude evidence on chain-of-custody grounds, even though gaps or other flaws in that chain may exist. “[A]n objection on chain of custody grounds may be less productive for defendant than a decision to permit the prosecutor to establish a shoddy chain of custody that can be pointed out to the jury in the hope of giving rise to a reasonable doubt.” (People v. Lucas (1995) 12 Cal.4th 415, 446.)

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Here, defendant cannot establish that counsel had no tactical reason for not mentioning the bedspread stains during the hearing. The central theme of the defense’s case was that defendant’s semen sample was not on the green bedspread in 1978, and that both the bedspread and the sock had been tampered with. It is possible that counsel did not want to reveal their strategy to the prosecution before trial by articulating these arguments in the exclusion motion. Further, counsel may have decided not to raise the issue because there were multiple explanations for the difference in degradation between the sample on the bedsheet and the sample on the bedspread. The defense’s own expert testified that there might have been different levels of DNA deposited on the bedspread as compared with the bedsheet. She also testified on cross-examination that, generally, tight weave fabrics do not retain as much stain material as a looser weave, and that synthetic and natural fibers retained stain material differently.

Additionally, counsel could not definitively establish (through Diosi, Laskowski, or otherwise) that the bedspread stains were not present in 1978, only (at most) that no stains had been detected at that time. As Diosi would later testify at trial, his role was to collect and identify trace evidence such as hairs and fibers from the seized evidence while Laskowski identified biological evidence. If Diosi had seen biological material, he “[m]ost likely” would have told Laskowski rather than write it in the evidence report himself. His report also contained notations regarding the bedsheet in Laskowski’s handwriting, but he, too, could not have conclusively established the absence of stains on the bedspread when it was obtained by law enforcement in 1978.

From the record on appeal, we cannot conclude that counsel’s performance at the evidentiary hearing fell outside “ ‘the wide range of professional competence and that counsel’s actions and inactions

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[cannot] be explained as a matter of sound trial strategy.’ ” (Centeno, supra, 60 Cal.4th at pp. 674–675.) Defendant therefore has not established that counsel rendered deficient performance.40 We further conclude that, even if counsel had rendered deficient performance in connection with the hearing, there was no prejudice. (See Barrett, supra, 17 Cal.5th at p. 969.) As noted ante, defendant has not offered an alternative explanation for how semen matching his DNA profile appeared on the bedspread. Even if defense counsel had contended at the pretrial hearing that the bedspread stains were not present in 1978, in light of the prosecution’s offer of proof and the limited nature of what could be shown about the bedspread’s condition back at that time, the DNA evidence that was later obtained from it would still have been admitted as evidence for the jury’s consideration. Defendant’s ineffective assistance of counsel claim fails for this reason, as well.

4. The motion for a new trial When he was called as a witness at trial, neither the prosecution nor the defense asked Laskowski whether he had inspected the bedspread for stains and what, if anything, he saw. Defendant argues the trial court abused its discretion when it denied his posttrial motion seeking a new trial insofar as that motion alleged that counsel provided ineffective assistance in this respect.

“Usually, ‘ineffective assistance [of counsel claims are] more appropriately decided in a habeas corpus proceeding.’ [Citation.] But we have also held that a defendant may raise the issue of counsel’s effectiveness as a basis for a new trial, and, to expedite justice, a trial

40 We further note that defendant’s claim of ineffective assistance of counsel “is better raised in a habeas corpus proceeding.” (Barrett, supra, 17 Cal.5th at p. 970.)

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court should rule ‘[i]f the court is able to determine the effectiveness issue on such motion.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958.) “ ‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse-of-discretion standard.’ [Citations.] ‘ “A trial court’s ruling on a motion for new trial is so completely within that court’s discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion.” ’ ” (People v. Thompson (2010) 49 Cal.4th 79, 140.)

The trial court did not abuse its discretion. Counsel’s decision to not question Laskowski regarding whether he observed stains on the bedspread did not constitute ineffective assistance.

Defendant’s trial counsel addressed his approach to this witness during the posttrial hearing on defendant’s claim of ineffective assistance. Counsel stated he did not know whether Laskowski had looked at the bedspread, but even if he had inspected it, counsel “was afraid of bringing [Laskowski] back [as a witness] because there was a big problem.” He explained that Laskowski found and collected numerous hairs on Woolley’s body, and testing did not rule out the hairs belonging to someone who was Black. The prosecution “didn’t pick up on this, and [counsel] was afraid that that would be very dangerous,” so he chose not to recall Laskowski and ask him questions that might bring the hairs to the prosecution’s, and subsequently the jury’s, attention.

Not asking Laskowski at trial whether he had observed any stains on the bedspread in 1978 was therefore consistent with a strategy that provided the defense with the ability to argue that the bedspread had been tampered with, without inviting the admission of potentially damaging evidence. Counsel made a strategic, tactical decision not to invite possible questioning regarding hairs found on

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Woolley and instead chose to vigorously argue to the jury that the bedspread stain was not present in 1978.

Defendant argues on appeal that counsel’s “fear of the hairs was unreasonable” as they were not forensically linked to him. Although he disagrees with counsel’s reasoning, that alone does not mean counsel’s representation “ ‘ “ ‘ “fell below an objective standard of reasonableness.” ’ ” ’ ” (Barrett, supra, 17 Cal.5th at p. 969.) Defendant also observes that defense counsel did ask Laskowski whether any “foreign” hairs had been located in pubic hair combings, with Laskowski testifying that none had been found. Defendant argues that this questioning led Laskowski to consult his notes and, by possibly inviting further scrutiny of these records, belies counsel’s subsequent explanation to the trial court. We see no conflict. This questioning regarding the absence of hairs found through a particular investigatory technique did not necessarily broach the subject that the defense wanted to avoid.

Defendant’s position that it was unreasonable not to ask Laskowski about the bedspread is also undermined by Diosi’s testimony. Even though Diosi identified Laskowski as having primary responsibility for collecting biological evidence, he provided testimony that allowed the defense to argue that no bedspread stains had been recorded by law enforcement back in 1978, even though stains found on the bedsheet had been. With this testimony in the record, by the time counsel had to decide whether to recall Laskowski as a witness counsel could reasonably regard the risks associated with recalling him as outweighing any potential benefits.

Additionally, we note that the trial court explicitly expressed its agreement with defense counsel’s decision. After giving counsel an opportunity to respond to defendant’s allegations during the hearing on the motion for a new trial, the court stated that it questioned why

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the prosecution did not ask Laskowski about the bedspread, but “I knew why your defense attorneys didn’t call Laskowski. It was clear to me. . . . And so I think that your attorneys made a good tactical decision on not calling Laskowski once Diosi testified Laskowski would have looked at that, because then they had the evidence in front of the jury that benefitted . . . their argument and benefitted you. [¶] And the jurors could have thought, and probably did think, I wonder why Laskowski didn’t note these stains on the bedspread.”

We conclude from the above that defendant has failed to show that counsel rendered deficient performance. In any event, defendant cannot establish prejudice resulting from the failure to question Laskowski at trial about the bedspread. (See Barrett, supra, 17 Cal.5th at p. 969.) Defendant asserts that Laskowski “could have testified” that he did not examine the bedspread, or that it was not his practice to note all stains or that he did not remember, or that he now recalled that there was a stain, testimony the defense could have impeached. Defendant’s alleged prejudice is highly speculative. Again, he has provided no alternative explanation for the presence of semen with DNA matching his profile on the bedspread, and the jury had before it Diosi’s testimony to support the argument that the semen stains had not been on the bedspread back in 1978. While the prosecutor would note in closing argument rebuttal that the defense had not recalled Laskowski as a witness to testify regarding the bedspread, defense counsel reasonably could have concluded that Diosi’s testimony was sufficient on its own to cast doubt on the bedspread’s condition in 1978. Finally, even if the court had excluded DNA results from the bedspread, defendant’s DNA was still admissible at trial by way of the sock which was found wrapped around Woolley’s neck.

With neither deficient performance nor prejudice having been shown, we reject defendant’s claim that the trial court should have

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granted the motion for a new trial due to ineffective assistance of counsel.

E. Admission of Crime Scene and Autopsy Photographs Defendant claims that the trial court abused its discretion and violated his state and federal constitutional rights to due process and a reliable death verdict in admitting four crime scene and autopsy photographs depicting the victim. He asserts that the photographs were irrelevant under Evidence Code section 210 and alternatively should have been excluded under Evidence Code section 352 as cumulative of expert and lay testimony and more prejudicial than probative. We conclude the photographs were properly admitted and that there was no error under state or federal law.

1. Background

During trial, outside the presence of the jury, defense counsel objected pursuant to Evidence Code section 352 to admission of four photographs — People’s exhibit No. 6, photographs 21, 22, and 34; and People’s exhibit No. 8.41 The last of these photographs is an autopsy photograph depicting Woolley’s face and upper torso with a sock around her neck with a red frothy substance coming from her nose and mouth. Photograph 21 is a crime scene photograph depicting Woolley’s body on the bed with her head hung over the side, a sock tied around her neck, and a red frothy substance coming from her nose and mouth. Photograph 22 is a crime scene photograph depicting a closeup of Woolley’s head and shoulders and the sock. Photograph 34 is an autopsy photograph depicting a closeup of Woolley’s head, her neck with the sock removed, and injuries to her neck.

41 For this discussion, we refer to People’s exhibit No. 8 as “Photograph 8.” And we refer to People’s exhibit No. 6, photographs 21, 22, and 34 as, respectively, “Photograph 21,” “Photograph 22,” and “Photograph 34.”

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The trial court overruled defense counsel’s objections as follows:

“I think each of those does have its own special relevance, clearly to show that a sexual assault had occurred by the placement of the body. . . . [¶] Twenty-two does show a close-up of the sock around the victim’s neck which, although you can see in 21, more accurately . . . shows where it, in fact, was located. And it also shows how much it’s been stretched out, and I think it’s appropriate. [¶] As to 34, given that the People have to prove premeditation, deliberation, the injury to the victim’s neck without the sock covering it, I think, is appropriate and . . . the prejudicial value does not outweigh the probative value. [¶] In addition, we have voir dired the . . . potential jurors on this, and so it’s not going to shock them. In fact, to be honest with you, these don’t look as bad as I thought they were going to look from your descriptions.” The trial court found that none of the photographs were unduly prejudicial and that viewed in conjunction with the other three photographs, Photograph 8 established the chain of custody from the crime scene to the coroner’s office concerning the sock tied around Woolley’s neck.

2. Discussion “ ‘Relevant evidence’ means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) With respect to photographic evidence, the jury is entitled to assess whether details of a murder victim’s body support the prosecution’s theory of the case. (See People v. Gurule (2002) 28 Cal.4th 557, 624.) “Autopsy photographs are routinely admitted to establish the nature and placement of the victim’s wounds and to clarify the testimony of prosecution witnesses regarding the crime scene and the autopsy, even if other evidence may serve the same purposes.” (People v. Howard (2010) 51 Cal.4th 15, 33.) “ ‘The admission of allegedly gruesome photographs is basically a question of relevance over which

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the trial court has broad discretion. [Citation.] “A trial court’s decision to admit photographs under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of such photographs clearly outweighs their probative value.” ’ ” (Brooks, supra, 3 Cal.5th at p. 54.)

Here, defendant’s contention that the photographs should have been excluded as irrelevant is without merit. Each of the four photographs was relevant to specific factual and legal issues in this case. Photograph 21 depicts Woolley’s almost nude upper torso with her head hanging over the side of her bed; Photograph 22 is a closeup of Woolley’s head and shoulders depicted in Photograph 21 that shows some of her neck injury under the sock and a red frothy substance coming from her nose and mouth; and Photograph 34 is an autopsy photograph that depicts Woolley’s neck injury, which was partially covered by the placement of the sock. These photographs were relevant to several factual questions, including whether Woolley was sexually assaulted and the manner of the killing. In turn, resolution of these issues was relevant to the prosecution’s theories that defendant committed premeditated and deliberate murder and that Woolley was killed during the commission of a rape or attempted rape. In this sense, the photographs were relevant to the ultimate determination of guilt. As for Photograph 8, it was relevant to establish the chain of custody of the sock from the crime scene to the coroner’s office because it shows the sock around Woolley’s neck during the autopsy whereas Photograph 34 depicts Woolley’s neck without the sock during the autopsy. The trial court did not abuse its discretion by concluding that each of the photographs was relevant.

Defendant’s contention that the photographs should have been excluded as unduly prejudicial, cumulative, or both, under Evidence Code section 352 also fails. We have examined each of the four photographs and conclude that “any ‘revulsion they induce is

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attributable to the acts done, not to the photographs.’ ” (Brooks, supra, 3 Cal.5th at p. 55.) “The jury can, and must, be shielded from depictions that sensationalize an alleged crime, or are unnecessarily gruesome, but the jury cannot be shielded from an accurate depiction of the charged crimes that does not unnecessarily play upon the emotions of the jurors.” (People v. Ramirez (2006) 39 Cal.4th 398, 454; see also People v. Gonzales (2012) 54 Cal.4th 1234, 1272.) The photographs at issue did no more than accurately depict the disturbing nature of the crime, including that Woolley was killed by ligature strangulation. Further, the photographs were not unduly cumulative of the testimony of prosecution witnesses. Rather, they clarified that testimony, including Dr. Hanks’s testimony concerning Woolley’s neck wound and the location of her body when it was found.

Addressing a more targeted challenge brought by defendant, contrary to his assertions Photograph 21 was not cumulative of the subject matter depicted in People’s exhibit No. 6, photographs 19 and 20 (Photographs 19 and 20, respectively), which are essentially duplicative and depict Woolley’s body only from the knees down with her left foot entangled in the green bedspread. Defendant asserts that Photographs 19 and 20 permitted the jury “to know the placement of [Woolley’s] body, particularly in relation to the green bedspread that provided important DNA evidence.” But neither Photograph 19 nor 20 depicted the position of Woolley’s almost nude upper torso on the bed, the sock around her neck, or her head hanging over the bed, facts relevant to key issues of the case — whether she was sexually assaulted and the manner in which she was killed.

Defendant’s argument that empirical studies have suggested that the introduction of autopsy and crime scene photographs at trial is likely to have a dramatic effect on juries is unpersuasive. Even if some studies suggest that juries are likely to be affected by such

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photographs, this does not alter the propriety of the trial court’s analysis under Evidence Code sections 210 and 352.

We conclude the trial court did not abuse its discretion in admitting the photographs. Consequently, there was no violation of defendant’s constitutional rights. (See People v. Riggs (2008) 44 Cal.4th 248, 304.)

F. Instruction on Lesser Offenses The jury was instructed on first degree murder (on theories of felony murder and deliberate and premeditated murder) and second degree murder (with malice aforethought but without premeditation and deliberation). Defendant contends the trial court erred by instructing the jury with CALJIC No. 8.7l (1996 rev.) (Doubt Whether First or Second Degree Murder). He asserts that, when considered in conjunction with CALJIC No. 8.75 (Jury May Return Partial Verdict — Homicide), the instruction skewed the jury’s deliberations toward first degree murder and made first degree murder the default verdict, thereby lowering the prosecution’s burden of proof in violation of defendant’s constitutional rights to due process, a trial by jury, and a reliable verdict. Defendant’s contentions are without merit.

CALJIC No. 8.71 (1996 rev.), as given, provided: “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree.”

In addition, the trial court gave CALJIC No. 17.40 (Individual Opinion Required — Duty to Deliberate), which informed the jury as follows: “The People and the defendant are entitled to the individual opinion of each juror. [¶] Each of you must consider the evidence for

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the purpose of reaching a verdict if you can do so. [¶] Each of you must decide the case for yourself, but should do so only after discussing the evidence and instructions with the other jurors. [¶] Do not hesitate to change an opinion if you are convinced it is wrong. However, do not decide any question in a particular way because a majority of the jurors, or any of them, favor that decision. [¶] Do not decide any issue in this case by the flip of a coin, or by any other chance determination.”

The trial court further instructed the jury with CALJIC No. 8.75,42 which provided in relevant part: “If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime of first degree murder as charged in Count one and you unanimously so find, you may convict him of any lesser crime provided you are satisfied beyond a reasonable doubt that he is guilty of the lesser crime. [¶] . . . [¶] The court cannot accept a verdict of guilty of second degree murder as to Count one unless the jury also unanimously finds and returns a signed verdict form of not guilty as to murder of the first degree in the same Count.”

42 Defendant contends the “acquittal first” rule embodied in CALJIC No. 8.75 erroneously precluded the jury’s full consideration of lesser included offense instructions and coerced verdicts on the greater charge, in violation of his federal constitutional rights to due process, jury trial, and the prohibition against cruel and unusual punishment, and the corresponding California constitutional provisions. We have repeatedly upheld the propriety of this instruction against similar challenges. (See, e.g., Brooks, supra, 3 Cal.5th at p. 82; Covarrubias, supra, 1 Cal.5th at p. 906; People v. Sattiewhite (2014) 59 Cal.4th 446, 479–480; People v. Whisenhunt (2008) 44 Cal.4th 174, 222–223; People v. Nakahara (2003) 30 Cal.4th 705, 715.) Defendant provides no persuasive reason to reconsider the issue.

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“ ‘[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction.’ ” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1220; see Estelle v. McGuire (1991) 502 U.S. 62, 72 [“in reviewing an ambiguous instruction . . . , we inquire ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution”].) “ ‘Jurors are presumed to be intelligent, capable of understanding instructions and applying them to the facts of the case.’ ” (People v. Lewis (2001) 26 Cal.4th 334, 390.)

In People v. Moore (2011) 51 Cal.4th 386, 411–412, we advised that “the better practice is not to use the 1996 revised versions of CALJIC Nos. 8.71 and 8.72 [relating to manslaughter], as the instructions carry at least some potential for confusing jurors about the role of their individual judgments in deciding between first and second degree murder, and between murder and manslaughter. The references to unanimity in these instructions were presumably added to convey the principle that the jury as a whole may not return a verdict for a lesser included offense unless it first reaches an acquittal on the charged greater offense. [Citation.] But inserting this language into CALJIC Nos. 8.71 and 8.72, which address the role of reasonable doubt in choosing between greater and lesser homicide offenses, was unnecessary, as CALJIC No. 8.75 fully explains that the jury must unanimously agree to not guilty verdicts on the greater homicide offenses before the jury as a whole may return verdicts on the lesser.” We nonetheless found any error in giving these instructions harmless beyond a reasonable doubt “in light of the jury’s true findings on the burglary-murder and robbery-murder special circumstances.” (Id. at p. 412.) We similarly concluded in People v. Scully (2021) 11 Cal.5th 542 (Scully) that any error in giving the instruction was harmless beyond a reasonable doubt because the

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jury’s findings “ ‘left no room for the lesser offense[] of second degree murder.’ ” (Id. at p. 598.)

Here, too, we conclude that any assumed error in giving this version of CALJIC No. 8.71 was harmless beyond a reasonable doubt in light of the jury’s true findings on the burglary-murder and rape- murder special circumstances, both of which required the jury to also find that the murder was willful, deliberate, and premeditated. “ ‘Any confusion generated by the challenged instructions, therefore, could not have affected the jury’s verdicts.’ ” (Scully, supra, 11 Cal.5th at p. 598.)

G. Instruction on First Degree Premeditated Murder and Felony Murder Count one of the information alleged that defendant “did willfully, unlawfully, deliberately, and with premeditation and malice aforethought murder Tana [Woolley], a human being, in violation of [P]enal [C]ode section 187, a felony.” Section 187, subdivision (a), currently provides, as it did at the time of Woolley’s murder, that “[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought.” At the time of the murder, first and second degree murder were distinguished under section 189, as follows: “All murder which is perpetrated by means of a destructive device or explosive, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, robbery, burglary, mayhem, or any act punishable under Section 288, is murder of the first degree; and all other kinds of murders are of the second degree.” (§ 189, as amended by Stats. 1970, ch. 771, § 3, pp. 1456–1457.)

Defendant contends that following the guilt phase of trial, the trial court erroneously instructed the jury on first degree

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premeditated murder and on felony murder because the information assertedly charged him with only second degree malice murder under section 187, not first degree murder, and did not allege the facts necessary to establish first degree murder. In other words, defendant maintains, section 187, subdivision (a), which provides “[m]urder is the unlawful killing of a human being, or a fetus, with malice aforethought,” defines only second degree malice murder.

“ ‘As defendant acknowledges, . . . we have consistently rejected such arguments and have concluded that a defendant may be convicted of first degree murder even though the indictment or information charges only murder with malice in violation of section 187. (People v. Whisenhunt [(2008)] 44 Cal.4th [174,] 222 . . . ; People v. Hughes [(2002)] 27 Cal.4th [287,] 368–370 . . . ; People v. Witt (1915) 170 Cal. 104, 107–108.)’ ” (People v. Tate (2010) 49 Cal.4th 635, 697 (Tate).) Defendant provides no reason to reconsider those decisions.

In derivative fashion, defendant contends his constitutional rights to due process and trial by jury were violated under Apprendi v. New Jersey (2000) 530 U.S. 466, because the jury was permitted to convict him of first degree premeditated murder and felony murder, which he characterizes as uncharged crimes. Defendant’s “ ‘reliance on Apprendi, however, is misplaced, because he was not convicted of . . . “uncharged crime[s].” ’ ” (Tate, supra, 49 Cal.4th at p. 697.)

IV. PENALTY PHASE ISSUES

A. Admission of Records of Defendant’s 1971 Misdemeanor Conviction and Related Jury Instructions At the penalty phase, over defense counsel’s objections, the trial court admitted a certified copy of defendant’s 1971 conviction for “assault with intent to commit great bodily injury” (former § 245) as a factor in aggravation (§ 190.3, factor (b)). Defendant contends the

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trial court prejudicially erred in admitting the evidence and in instructing the jury it could consider his prior misdemeanor conviction as a factor in aggravation under section 190.3, factor (b). Further, defendant asserts admission of the conviction violated his Sixth Amendment right to confrontation under Crawford, supra, 541 U.S. at page 68. We conclude no prejudicial error occurred.

Preliminarily, we note that the version of section 190.3, factor (b), in effect at the time of the capital murder in this case was nearly identical to the version enacted in 1978, which remains in effect as enacted (added by Prop. 7, § 8, as approved by voters, Gen. Elec. (Nov. 7, 1978), eff. Nov. 8, 1978).

1. Background Outside the presence of the jury and over defense objections on hearsay and federal constitutional grounds, the prosecutor sought admission under Evidence Code section 1280 of a certified copy of a docket from the Los Angeles County Superior Court dated April 5, 1971, documenting defendant’s conviction for assault with intent to commit great bodily injury under section 245. The prosecutor asserted the record was admissible under section 190.3, factor (b) as evidence of criminal activity by defendant that involved the use or attempted use of force or violence, regardless of whether defendant was convicted of a misdemeanor or felony. The trial court observed that the docket indicated defendant was charged with a felony but given a misdemeanor sentence. It found the conviction was a misdemeanor and granted the prosecutor’s motion to admit the record.

Subsequently, the trial court instructed the jury under CALJIC Nos. 8.86 and 8.87. CALJIC No. 8.86 provided, in relevant part: “Evidence has been introduced for the purpose of showing that the defendant has been convicted of the crime of misdemeanor assault by means of force likely to inflict great bodily injury prior to the offense

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of murder in the first degree of which he has been found guilty in this case. [¶] Before you may consider the alleged crime as an aggravating circumstance in this case, you must first be satisfied beyond a reasonable doubt that the defendant was, in fact, convicted of the prior crime.”

CALJIC No. 8.87 provided: “Evidence has been introduced for the purpose of showing that the defendant has committed criminal acts which involved the express or implied use of force or violence or the threat of force or violence. Before a juror may consider any criminal acts as an aggravating circumstance in this case, a juror must first be satisfied beyond a reasonable doubt that the defendant did in fact commit the criminal acts — act or acts. [¶] It is not necessary for all jurors to agree. If any juror is convinced beyond a reasonable doubt that the criminal activity occurred, that juror may . . . consider that activity as a factor in aggravation. If a juror is not so convinced, that juror must not consider that evidence for any purpose.”

2. Discussion A trial court’s decision to admit other crimes evidence pursuant to section 190.3, factor (b) at the penalty phase is reviewed for abuse of discretion. (People v. Delgado (2017) 2 Cal.5th 544, 582.) “ ‘The trial court is vested with wide discretion in determining the relevance of evidence,’ although a court ‘has no discretion to admit irrelevant evidence.’ (People v. Babbitt (1988) 45 Cal.3d 660, 681.)” (People v. Alexander (2010) 49 Cal.4th 846, 904.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; see also id., § 350 [“No evidence is admissible except relevant evidence”].)

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At the time Woolley was killed, section 190.3 provided no authority for a jury’s consideration of the fact of a defendant’s prior conviction, whether a felony or misdemeanor, in determining the appropriate penalty. (See former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1258–1259; cf. § 190.3, factor (c) [the trier of fact may consider “[t]he presence or absence of any prior felony conviction”].) The former statute, however, did permit the jury to consider under former section 190.3, factor (b) “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.”43 In this case, based on the trial court’s ruling in admitting the certified copy of defendant’s 1971 misdemeanor conviction for assault with intent to commit great bodily injury and the related jury instructions it gave, the trial court apparently contemplated that the jury could consider both (1) the fact of the conviction, and (2) the act of committing a crime involving force or violence. This was error under state law because, as stated, the jury was not authorized to consider the fact of defendant’s prior conviction when determining the appropriate penalty. We conclude, however, that the error was harmless.

In determining whether the erroneous admission of the record of defendant’s misdemeanor conviction requires reversal, we evaluate “whether there is a reasonable possibility that had the erroneously admitted evidence been excluded, the jury would have voted for life without [possibility of] parole instead of death.” (People v. Penunuri

43 This same language appears as section 190.3, factor (b) in the current version of section 190.3, enacted in 1978. (See § 190.3, added by Prop. 7, § 8, as approved by voters, Gen. Elec. (Nov. 7, 1978), eff. Nov. 8, 1978.)

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(2018) 5 Cal.5th 126, 160; see People v. Cowan (2010) 50 Cal.4th 401, 491 (Cowan) [the reasonable possibility standard used to assess the effect of state law error at the penalty phase is “ ‘the same, in substance and effect,’ as the harmless-beyond-a-reasonable-doubt standard of Chapman v. California, supra, 386 U.S. at page 24” for assessing the effect of federal constitutional error].)

Here, the prosecution presented evidence of defendant’s five assaults and rapes of four other women. The circumstances of the capital murder, which the jury must consider under section 190.3, factor (a), indicated that defendant snuck into Woolley’s apartment at nighttime and hid there before he raped or attempted to rape her and violently strangled her for minutes with her own sock, crushing a necklace into her skin and causing hemorrhaging of the thyroid gland and muscles. When defendant inflicted the neck wound, “there were certainly seconds to minutes that . . . [Woolley] was alive and the blood was still pumping.” In light of this evidence, the mere fact of defendant’s 1971 misdemeanor conviction, without any detail regarding the conduct underlying the conviction, could not have had any impact in the jury’s penalty calculus.

Defendant asserts that during penalty phase deliberations the jury speculated as to the underlying factual basis of his prior assault conviction. Any uncertainty about what the conviction involved, however, does not alter the fact that it is not reasonably possible the conviction affected the penalty verdict. Each juror swore to decide the penalty question “according only to the evidence presented . . . and to the instructions of the Court.” We presume the jurors followed the court’s instructions to decide the penalty according only to the evidence presented, rather than speculating about the conviction in a

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manner that might have amplified its significance. (See People v. Tarantino (1955) 45 Cal.2d 590, 597.)44 We need not consider defendant’s derivative Crawford claim that the admission of defendant’s 1971 misdemeanor assault conviction also violated his right to confrontation under the Sixth Amendment. For the same reasons the erroneous admission of the certified copy of the assault conviction under state law was harmless beyond a reasonable doubt, any possible federal constitutional error under Crawford also was harmless. (Cowan, supra, 50 Cal.4th at p. 491.)

B. Victim Impact Evidence and Related Instructions “ ‘In a capital trial, evidence showing the direct impact of the defendant’s acts on the victims’ friends and family is not barred by the Eighth or Fourteenth Amendments to the federal Constitution. (Payne v. Tennessee (1991) 501 U.S. 808, 825–827 . . . .) Under California law, victim impact evidence is admissible at the penalty phase under section 190.3, factor (a), as a circumstance of the crime, provided the evidence is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.’ ” (Chism, supra, 58 Cal.4th at p. 1326.) In People v. Edwards (1991) 54 Cal.3d 787, 835, we held that “section 190.3, factor (a), regarding the circumstances of the capital crime, authorizes ‘evidence and argument on the specific harm caused by the defendant, including the impact on the family of the victim.’ ” (People v. Johnson (2016) 62 Cal.4th 600, 646.)

Defendant argues that, although binding on this court, the high court’s decision in Payne was wrongly decided and the Eighth

44 Furthermore, the prosecutor did not mention the misdemeanor during closing argument.

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Amendment, properly construed, precludes admission of victim impact evidence. He asserts that he “presents this claim on appeal in order to exhaust his state remedies and, if necessary, assert the claim in a federal petition for writ of habeas corpus and obtain the benefit of any new rule of law on this question by the United States Supreme Court. (See 28 U.S.C. §§ 2254(b)(1), 2254(d)(I).)” “We have no authority to overturn United States Supreme Court decisions, and defendant proffers no persuasive reason for us to overrule our own decisions regarding victim-impact evidence.” (People v. Weaver (2012) 53 Cal.4th 1056, 1086 [discussing Payne]; People v. Bradley (1969) 1 Cal.3d 80, 86 [our courts are bound by the United States Supreme Court decisions interpreting the federal Constitution].) We therefore reject defendant’s contentions as contrary to settled law.

Defendant also advances a narrower argument regarding the jury’s consideration of victim impact evidence. During a conference on the penalty phase instructions, the trial court indicated that it would modify the language of CALJIC No. 2.01 (Sufficiency of Circumstantial Evidence — Generally) that had been given at the guilt phase trial regarding defendant’s guilt for any crimes based on circumstantial evidence. The purpose of the modification was to clarify that the instruction applied in the penalty phase to circumstantial evidence offered to prove that defendant committed “one or more criminal acts.” Defense counsel requested the instruction be further modified to include language that “if something can be seen two ways, then the jurors should adopt that which points in his favor as opposed to pointing against [him].” Counsel then specifically suggested that the trial court’s modification should not be limited to evidence of criminal acts under Evidence Code section 1108 and requested the instruction be modified further to refer to all circumstantial evidence offered at the penalty phase: “[i]f circumstantial evidence could be viewed . . . two reasonable ways, one

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in mitigation and one in aggravation, you should adopt that which points to mitigation and reject that which points to aggravation.” The trial court declined the request and instead instructed as it had proposed.

Defendant contends the instruction should have been further modified to inform the jury that it applied to any other circumstantial evidence offered in the penalty phase, including circumstantial evidence offered to show victim impact. In support, he argues that “if circumstantial evidence is presented to show a particular harm, the testimony should be evaluated under standard evidentiary principles: aggravating evidence of victim impact should not be considered unless jurors find that it is consistent with the theory that a defendant caused the harm, the underlying facts are proved beyond a reasonable doubt, and the aggravation cannot be reconciled with any other conclusion.” The People argue the claim is forfeited because defendant did not seek modification of the instruction to include this specific language. In general, “[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49 Cal.3d 991, 1024.)

The question of forfeiture is close. Although defense counsel did not request the instruction be modified to include a specific reference to circumstantial evidence of victim impact, he did indicate that the modification should reach beyond other criminal acts evidence under Evidence Code section 1108 to include a general reference to “circumstantial evidence.”

Yet we do not need to decide whether defendant’s failure to request a modification to specifically add “circumstantial evidence of victim impact” forfeits any claim of error because the claim fails on

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the merits. Woolley’s family members primarily gave direct testimony about the impact Woolley’s murder had on them personally, and thus, “the instructions [on circumstantial evidence] were not called for.” (People v. Boyce (2014) 59 Cal.4th 672, 716 [the trial court was not required to instruct on circumstantial evidence at the penalty phase when, among other things, “[s]urvivors gave direct victim impact testimony”].)

Furthermore, “ ‘[w]e previously have explained that the standard CALJIC penalty phase instructions “are adequate to inform the jurors of their sentencing responsibilities in compliance with federal and state constitutional standards.” ’ ” (People v. Hartsch (2010) 49 Cal.4th 472, 511.) “[T]he standard instructions found in CALJIC Nos. 8.85 and 8.88, as given by the trial court, adequately conveyed to the jurors the proper consideration and use of victim impact evidence.” (Scully, supra, 11 Cal.5th at p. 605.)

C. Limitation on Mitigating Evidence Defendant contends the trial court prevented him from presenting mitigating evidence about his upbringing in an environment of domestic violence. He asserts that erroneous exclusion of such evidence violated his constitutional rights to a reliable verdict and due process of law under the Eighth and Fourteenth Amendments to the United States Constitution.

“It is well established that at the penalty phase of a capital case, the fact finder may not be precluded from considering any relevant mitigating evidence. (Skipper v. South Carolina (1986) 476 U.S. 1, 4 . . . ; Eddings v. Oklahoma (1982) 455 U.S. 104, 114 . . . .) The Eighth Amendment to the federal Constitution requires that a capital jury be permitted to consider in mitigation ‘ “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than

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death.” ’ ” (People v. Salcido (2008) 44 Cal.4th 93, 161.) “ ‘[N]either this court nor the high court[, however,] has suggested that the rule allowing all relevant mitigating evidence has abrogated the California Evidence Code.’ [Citation.] ‘As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.’ ” (People v. Phillips (2000) 22 Cal.4th 226, 238 (Phillips).) While “[e]xclusion of hearsay testimony at a penalty phase may violate a defendant’s due process rights if the excluded testimony is highly relevant to an issue critical to punishment and substantial reasons exist to assume the evidence is reliable” (ibid.), “if the exculpatory value of the excluded evidence is tangential, or cumulative of other evidence admitted at trial, exclusion of the evidence does not deny the accused due process of law” (People v. Smithey (1999) 20 Cal.4th 936, 996; see also Green v. Georgia (1979) 442 U.S. 95, 97). A trial court’s decision to admit or exclude evidence in this context is reviewed for abuse of discretion. (People v. Williams (2006) 40 Cal.4th 287, 317.)

We conclude the trial court did not abuse its discretion in limiting defendant’s mitigating evidence.

1. Statements made by defendant’s brother, Leonard Hazlett

Defense counsel filed a motion seeking admission of certain statements made by defendant’s brother Leonard Hazlett, who died before trial but had spoken to his wife, Patricia Hazlett, and investigators about the violence in the home in which he and defendant were raised. Defense counsel represented that Leonard stated: (1) defendant observed an incident in which their mother used a can opener to poke out their stepfather’s eye, which “broke like an egg”; (2) he and defendant witnessed violent fights between their mother and stepfather and an assault of an aunt by an uncle who “chased their aunt into [a] room, knocked her to the floor and with a

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knife, shredded her face”; and (3) he and defendant felt helpless to protect their mother and this shamed defendant because he did not help her.

Counsel sought admission of Leonard’s statements “on the grounds that the witness is unavailable and that admission of the statements are necessary to ensure the [d]efendant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, sections 1, 7, 15 and 17 of the Constitution of California.”

After considering argument from counsel at the hearing on the defense motion, the trial court denied the motion, ruling the statements were “pure hearsay” and inadmissible. It reasoned that admission of Leonard’s hearsay statement would put the prosecution at a disadvantage because the prosecutor would have no opportunity to cross-examine Leonard about the specific contents of his statements. In addition, the trial court concluded, and defense counsel conceded, certain statements by Leonard were inadmissible because they purported to relate how defendant felt about certain events during childhood. Impliedly, the trial court ruled that even if Leonard were alive and available to testify, the statements would be inadmissible on hearsay grounds (Evid. Code, § 1200) and for lack of foundation (id., § 702). Finally, the trial court otherwise found the subject of defendant’s childhood to be relevant and informed trial counsel that “defendant can testify about his background. And if he testifies about that, his testimony could be limited just to his background, his growing up years.” Defendant elected not to testify.

On appeal, defendant argues the proffered evidence was critical to establish the shame defendant felt for not being able to help his mother and the extent of the domestic violence in defendant’s childhood home. He contends that Leonard’s statements were reliable

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because he made them to his wife, Patricia, and he notes that the prosecutor would have had an opportunity to cross-examine her.

The trial court properly ruled that the proffered extrajudicial statements to defense investigators and to Patricia were inadmissible hearsay as out-of-court statements offered to prove the incidents occurred. (Evid. Code, § 1200, subds. (a) [hearsay is “evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated”], (b) [unless otherwise provided by law, hearsay evidence is inadmissible].) Although, as noted, the exclusion of hearsay testimony at the penalty phase may be improper if the testimony is highly relevant and substantial reasons exist to assume the evidence is reliable (Phillips, supra, 22 Cal.4th at p. 238), neither consideration exists here. There is no substantial reason to believe that Leonard’s out-of-court statements, made to investigators after defendant’s arrest in this capital case, were particularly reliable. Defendant asserts that the prosecutor could have cross-examined Leonard’s wife about the statements Leonard made to her, but the circumstances nonetheless foreclosed any opportunity for the prosecutor to impeach or otherwise directly test Leonard’s credibility. (See People v. Wright (1990) 52 Cal.3d 367, 431 [trial court properly excluded 10-year-old psychiatric report offered in mitigation when the circumstances foreclosed any opportunity for the People to impeach or otherwise test the validity of the psychiatrist’s conclusions].) Furthermore, as the trial court ruled, any statements by Leonard purporting to relate defendant’s shame or other feelings about the pervasive domestic violence he experienced growing up were inadmissible as lacking foundation. (Evid. Code, § 702.) Finally, nothing prevented defendant from taking the stand to testify about the subject of the proffered testimony. We conclude that the trial court did not abuse its discretion in excluding this evidence.

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2. Statements made by defendant’s siblings Defendant contends the trial court abused its discretion in excluding testimony from his siblings regarding how they were affected by the domestic violence in their household in which they all grew up. The trial court excluded the testimony after finding it did not relate directly to what defendant experienced. Specifically, defendant argues the trial court erred in sustaining the prosecutor’s objections to the following testimony: (1) Dan’s testimony about his father (defendant’s stepfather) and an incident between the two that occurred in the kitchen, because Dan could not recall if defendant was present; (2) Kevin’s testimony that he considered their father to be evil based on incidents he, but not defendant, had observed; (3) Kevin’s testimony about how he personally experienced his father’s violence; (4) Kevin’s testimony about the circumstances that led him to leave his home at age 15; (5) Kevin’s testimony about whether he had verbally or emotionally abused his own children or committed crimes involving domestic violence; (6) David’s testimony about his own problems with alcohol and drug addiction; and (7) David’s testimony concerning his (and defendant’s) mother’s use of prescription pills to address pain.

Defendant argues the excluded testimony was relevant to show that any problem defendant had with rage and violence “was not simply because he was evil.” He asserts the evidence additionally would have mitigated the capital crime by showing that he was able to stop the cycle of domestic violence in his own home by not perpetuating it upon his children.

We conclude none of the trial court’s rulings constituted an abuse of discretion. Beginning with the first two rulings described above, there was no foundation laid that defendant observed or was involved in the incidents or sentiments described by Dan (kitchen incident with defendant’s stepfather), or Kevin (Kevin’s feelings that

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his father was evil). (See People v. Loker (2008) 44 Cal.4th 691, 730 (Loker) [the trial court did not abuse its discretion in excluding testimony from the defendant’s half brother about the environment he grew up in when “no foundation had been laid that [the half brother] was in the [trailer] park at the same time as [the] defendant, or that he had a relationship with [the] defendant as they were growing up”].) Defendant speculates that “the collateral impact” of these incidents affected everyone in the house. Yet under this theory, this evidence was tangential at best. “Exclusion of such evidence does not deny a defendant due process of law.” (Ibid.)

The remaining five challenged rulings identified above —

regarding Kevin’s specific experiences with his father’s violence and its impact on him as a teenager and an adult, David’s personal problems with substance abuse, and defendant’s mother’s abuse of prescription pills — similarly involved personal problems of defendant’s family members with the domestic violence each experienced in the home and its residual effects, but with no showing of defendant’s involvement with or awareness of their experiences and difficulties. Even assuming the reliability of the excluded evidence, defendant fails to demonstrate how this evidence bore upon defendant’s character or any critical issue before the penalty jury. (See People v. Stayner (2026) 19 Cal.5th 395, 545 [“ ‘the background of the defendant’s family is material if, and to the extent that, it relates to the background of defendant himself’; it ‘is of no consequence in and of itself’ ”].) Moreover, the jury heard extensive testimony about the beatings defendant suffered at the hands of his stepfather and the recurrent domestic violence between his mother and stepfather. The jury had before it a detailed portrait of defendant’s upbringing even without the challenged evidence. There was no abuse of discretion in excluding the additional testimony implicated by this claim.

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3. Testimony of Dr. Minagawa concerning statements by Kevin and David

Defendant contends the trial court erroneously limited the testimony of his penalty phase expert, Dr. Minagawa. On direct examination, Dr. Minagawa testified regarding the general effects of exposure to domestic violence on children and characterized defendant’s family as “a textbook case of domestic violence gone completely amok.” Dr. Minagawa opined that based on his research, clinical experience, and interviews with defendant’s family members, defendant’s “behaviors, symptoms, [and] outcomes” were consistent with what would be expected from a child raised in an environment of domestic violence. Defense counsel then sought to elicit testimony from Dr. Minagawa about whether in reaching his opinion he considered statements by defendant’s brothers David and Kevin concerning their “problems with drugs” and Kevin’s personal problems with domestic violence involving his own children. The prosecutor objected that the matter was irrelevant.

Outside the presence of the jury, the trial court ruled as follows:

“Clearly, the defendant’s background and his family is always admissible. There’s been no objection to that. It’s the specifics of what’s happened with his siblings. [¶] . . . [¶] In this particular case, at this point in time, we have evidence that the siblings, four, five of the brothers, have been in prison; we have evidence that they’ve committed various crimes. [¶] I’ll allow the doctor to talk very generally about that, but I don’t want [him] to get into specifics.” The court continued, “If the brother had a particular problem with his daughter, step-daughter or wife, we don’t need to get into particulars. Very broad. The siblings had problems; it’s indicative of a household full of family violence. Most of that evidence is already in anyway. Very broad.”

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On appeal, defendant argues that the various facts Dr. Minagawa relied on concerning defendant’s siblings and the problems that they faced as a result of exposure to domestic violence recurrent in the home were relevant to corroborate and support the expert’s conclusions about domestic violence, including that defendant’s family was a “textbook case” of domestic violence, and should have been admitted. This claim fails.

As previously described, the jury had heard from many of defendant’s family members who testified extensively about domestic violence in their home. Dr. Minagawa testified concerning the impact of exposure to domestic violence on children, generally, and the specific impact domestic violence in their home had on defendant. The trial court permitted Dr. Minagawa to testify in general about the domestic violence experienced by defendant’s family members in the household in which defendant grew up, but excluded testimony related to specific incidents experienced by any individual family member if it could not be shown that defendant also experienced that same incident. The trial court did not err in drawing this line. (Loker, supra, 44 Cal.4th at p. 731.) Although defendant argues that the excluded testimony would have enabled the expert to better explain to jurors what defendant overcame to stop the violence within his own family, here again we conclude that the evidence that was admitted at trial was adequate to show defendant’s difficult upbringing, against which his current familial relations could be juxtaposed.

Finally, defendant argues that his inability to offer evidence that some of defendant’s other family members experienced problems later in life consistent with the effects of domestic violence permitted the prosecutor to argue to the jury that some of defendant’s siblings enjoyed successful careers despite their violent childhoods, with the prosecutor referring to evidence of domestic violence as “an excuse.” The jury, however, “would reasonably infer that a child who was

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physically abused . . . would have suffered from this experience” (Loker, supra, 44 Cal.4th at p. 730), even without hearing of the problems encountered by some of defendant’s other family members.

For these reasons, exclusion of the expert’s testimony was neither an abuse of the trial court’s discretion nor a denial of defendant’s right to due process.

D. Instruction Concerning Sympathy for Defendant’s Family Defendant contends that in response to a written question by the jury, the trial court erroneously instructed the jury that it could not consider sympathy for his family in determining the appropriate penalty. He asserts the instruction violated his federal and state constitutional rights to a properly instructed jury, due process, and a reliable penalty verdict. (U.S. Const., 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 16, 17.) We conclude the trial court did not err, and that any assumed error was harmless.

1. Background During closing argument, the prosecutor informed the jurors that “[they] will be instructed that . . . while you may consider sympathy for the defendant, you may not consider sympathy for his family.” Subsequently, during the penalty phase deliberations, the jury sent the trial court a note asking if it could consider sympathy for defendant’s family in determining the appropriate penalty. At a hearing outside the presence of the jury, the trial court acknowledged that it did not include language in the standard instruction on the factors in aggravation and mitigation (CALJIC No. 8.85) that the jury was not to consider sympathy for the family. The court then cited People v. Ochoa (1998) 19 Cal.4th 353, 456 (Ochoa) for the proposition that the 1978 version of section 190.3 precludes the jury’s consideration of sympathy for a defendant’s family as a matter

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relevant to mitigation. The court asked the parties whether that holding reflected the earlier law that must be applied in the present case. The prosecutor argued that the 1977 version of section 190.3, applicable here, was essentially the same as the 1978 version on this point and urged the trial court to instruct the jury that it could not consider sympathy for defendant’s family. Defense counsel countered that the 1977 version of section 190.3 was more flexible and permitted consideration of sympathy for a defendant’s family and that Ochoa was not authority concerning the 1977 law.

Based on the holding in Ochoa, the trial court answered the jury’s note with the following instruction: “While you are correct that you can consider sympathy for the defendant, sympathy for the family of the defendant is not a matter which you can consider in mitigation. Evidence, if any, of the impact of an execution on family members should be disregarded unless it illuminates some positive quality of the defendant’s background or character.”

2. Legal Principles In Lockett v. Ohio (1978) 438 U.S. 586, 604, the United States Supreme Court concluded that “the Eighth and Fourteenth Amendments require that the sentencer . . . not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Fn. omitted.)

“State law requires the jury to take into account matters relevant to the penalty determination. ‘[S]ection 190.3 [of the 1978 law] provides that, with narrow exceptions, “evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence including, but not limited to” the circumstances of the current offense, prior felony

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convictions or violent crimes, “and the defendant’s character, background, history, mental condition and physical condition.” (Italics added.) In deciding whether the aggravating circumstances outweigh the mitigating, the jury must consider, among other things, “all of the evidence” and “the arguments of counsel.” ’ ” (Ochoa, supra, 19 Cal.4th at p. 455.) We have held that, under the current death penalty statute, an instruction inviting a jury’s consideration of sympathy for the defendant’s family in deciding penalty “would not have properly stated the law, which requires an individualized assessment of the defendant’s background, record, and character, and the nature of the crimes committed, both as a matter of state law [citations] and as a federal constitutional requirement.” (Id. at p. 456.) In contrast, a jury may consider evidence of a family member’s love for a defendant and desire that they live as indirect evidence of the defendant’s character. (Ibid.; People v. Bennett (2009) 45 Cal.4th 577, 601; People v. Sanders (1995) 11 Cal.4th 475, 546 (Sanders) [although “the impact on the victim’s family is arguably relevant to show the specific harm caused by the crime and the blameworthiness of the defendant — factors the United States Supreme Court has found relevant to the appropriate punishment — the impact on the defendant’s family is not comparably relevant to mitigate the specific harm of the crime or its blameworthiness”].) “ ‘[W]hat is ultimately relevant is a defendant’s background and character — not the distress of [the defendant’s] family.’ ” (People v. Bennett, at p. 602.)

3. Discussion Defendant argues that jurors were free to consider any sympathy they had for his family, and the trial court erred by prohibiting such consideration. He asserts our holding in Ochoa does not apply here because the language of the 1977 version of the death

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penalty law was more flexible regarding the evidence a jury could consider in deciding on the appropriate penalty. We reject this claim.

The 1977 law, as relevant here, provided that, subject to certain exceptions identified later in the statute, “In the proceedings on the question of penalty, evidence may be presented by both the people and the defendant as to any matter relevant to aggravation, mitigation, and sentence, including, but not limited to, the nature and circumstances of the present offense, the presence or absence of other criminal activity by the defendant which involved the use or attempted use of force or violence or which involved the expressed or implied threat to use force or violence, and the defendant’s character, background, history, mental condition and physical condition.” (Former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1258–1259.) After listing a series of factors to be accounted for “if relevant” (former § 190.3, added by Stats. 1977, ch. 316, § 11, p. 1259),45 the 1977

45 These factors consisted of: “(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1. [¶] (b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the expressed or implied threat to use force or violence. [¶] (c) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance. [¶] (d) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act. [¶] (e) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct. [¶] (f) Whether or not the defendant acted under extreme duress or under the substantial domination of another person. [¶] (g) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or the affects [sic] of intoxication. [¶] (h) The age of the defendant at the time of the crime. [¶] (i) Whether

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statute further specified that “[a]fter having heard and received all of the evidence, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall determine whether the penalty shall be death or life imprisonment without the possibility of parole” (former § 190.3, added by Stats. 1977, ch. 316, § 11, p. 1260).

By comparison, the 1978 law provides, after listing the factors to be taken into account if relevant, “After having heard and received all of the evidence, and after having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.” (§ 190.3.)

In arguing that the trial court erred under the 1977 statute, defendant relies on People v. Boyd (1985) 38 Cal.3d 762. There, we determined “whether under the 1978 initiative the prosecution can present evidence at the penalty phase which is not relevant to any of the specific aggravating or mitigating factors listed in the 1978 law.” (Id. at p. 772.) In answering this question in the negative, Boyd contrasted the 1977 and 1978 versions of section 190.3: “Under the 1977 version of section 190.3, the jury must ‘consider, take into

or not the defendant was an accomplice to the offense and his participation in the commission of the offense was relatively minor. [¶] (j) Any other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime.” (Former § 190.3, added by Stats. 1977, ch. 316, § 11, pp. 1259–1260.)

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account and be guided by the aggravating and mitigating circumstances’ enumerated in that section. The statute, however, provided no further guidance or limitation on the jury’s sentencing discretion. In the absence of such a limitation, the jury was free, after considering the listed aggravating and mitigating factors, to consider any other matter it thought relevant to the penalty determination. The 1978 initiative, by contrast, provided specifically that the jury ‘shall impose a sentence of death if [it] concludes that the aggravating circumstances outweigh the mitigating circumstances. If [it] determines that the mitigating circumstances outweigh the aggravating circumstances [it] shall impose a sentence of confinement in state prison for a term of life without the possibility of parole.’ [Citations.] By thus requiring the jury to decide the appropriateness of the death penalty by a process of weighing the specific factors listed in the statute, the initiative necessarily implied that matters not within the statutory list are not entitled to any weight in the penalty determination.” (Id. at p. 773, italics added.)

Defendant’s reliance on Boyd is misplaced. While the evidence permitted under the 1977 law may not have been “limited to matters relevant to the specified aggravating or mitigating factors” (People v. Murtishaw (1981) 29 Cal.3d 733, 773), such evidence still had to be “relevant to aggravation, mitigation, and sentence” generally (former § 190.3, added by Stats. 1977, ch. 316, § 11, p. 1259; cf. Murtishaw, at p. 774 [determining, under the 1977 death penalty law, that expert testimony offered by the prosecution at the penalty phase regarding a defendant’s future dangerousness involved undue prejudice that substantially outweighed its probative value and should not have been admitted over defendant’s objection]). This relevance requirement conveys a similar restriction on what the trier of fact could properly consider under the 1977 law in determining the

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appropriate penalty, the broad language used in Boyd notwithstanding.

In this case, the prosecutor’s argument and the trial court’s response to the jury’s question properly cast sympathy to defendant’s family as irrelevant “to aggravation, mitigation, and sentence” (former § 190.3, Stats. 1977, ch. 316, § 11, p. 1259) under the 1977 death penalty statute, just as it is irrelevant under the 1978 law. (Ochoa, supra, 19 Cal.4th at p. 456; accord, People v. Murtishaw (1989) 48 Cal.3d 1001, 1027 (Murtishaw II) [“a 1978-law sentencer [has] the same range of potential mitigating evidence and the same broad power of leniency and mercy afforded a 1977-law jury”].) This is because under both statutes, the fundamental question before the trier of fact is to “decide whether the defendant deserves to die, not whether the defendant’s family deserves to suffer the pain of having a family member executed.” (Ochoa, at p. 456; see Sanders, supra, 11 Cal.4th at p. 546.)46 There was no error.

Furthermore, even assuming former section 190.3 permitted jury consideration of family sympathy in deciding penalty, the trial court’s instruction was not prejudicial. Defendant presented the testimony of multiple family members showing the love that he and his family shared and evidence of defendant’s importance within their family, including his role as a parent and grandparent. The instruction that was provided to the jury allowed the jury to consider that evidence insofar as it implicated any positive aspect of defendant’s character. None of defendant’s witnesses in the penalty

46 Having concluded the trial court did not err in this respect, we reject defendant’s related argument that the trial court’s failure to so instruct the jury deprived him of a state-created “liberty interest” under Hicks v. Oklahoma (1980) 447 U.S. 343, 346. (See People v. Boyette (2002) 29 Cal.4th 381, 445, fn. 12.)

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phase testified about the effect a death verdict would have upon them or their family, however. It was only after the prosecutor stated that the jury would be instructed that they could not consider sympathy for defendant’s family and no such instruction was provided that the jury sought clarification from the trial court. Under the circumstances, we perceive no realistic possibility that the trial court’s instruction contributed to the verdict.

E. Challenges to California’s Death Penalty Statute Defendant raises numerous challenges under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the constitutionality of California’s death penalty statute and the way it was applied to him. In presenting his claims, defendant relies interchangeably on authorities interpreting our 1977 and 1978 death penalty laws. We conclude each claim lacks merit.

Preliminarily, we note that the aggravating and mitigating factors listed for the jury’s consideration regarding the question of penalty under the 1977 and 1978 death penalty statutes are the same except that the 1978 death penalty initiative added new factor (c), “[t]he presence or absence of any prior felony conviction.” (§ 190.3, factor (c).) The remaining factors listed in the 1977 law were thereafter resequenced accordingly. (§ 190.3, added by Prop. 7, § 8, as approved by voters, Gen. Elec. (Nov. 7, 1978), eff. Nov. 8, 1978.) The parties in this case agreed to have the trial court instruct the jury under the version of CALJIC No. 8.85 that listed the statutory factors as provided by the 1978 death penalty initiative.

In addition, as alluded to earlier in addressing defendant’s claim regarding sympathy to his family, “the 1978 [death penalty] law tells the jury to decide the appropriate punishment by weighing certain factors, while the 1977 version asked only that the sentencer ‘consider, take into account and be guided by’ the factors listed. But this

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amendment does not rob the jury of its constitutional responsibility to decide what penalty is appropriate under all the relevant circumstances. It simply makes clear that, in resolving the ultimate issue of punishment under the 1978 law, the jurors are to limit their consideration to ‘the specific factors listed in the statute . . . .’ ” (People v. Brown (1985) 40 Cal.3d 512, 544.) Here, the jury was instructed under former CALJIC No. 8.88 to exercise its sentencing discretion in accordance with the 1977 law, i.e., that it “shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed.”

Further, and notably, the language of the 1978 death penalty law “states that the fact finder ‘shall’ then impose a death sentence if it concludes aggravating circumstances ‘outweigh’ mitigating, and ‘shall’ impose a sentence of life imprisonment without possibility of parole if it concludes mitigating circumstances ‘outweigh’ aggravating. (§ 190.3.)” (Murtishaw II, supra, 48 Cal.3d at p. 1025.) When, in Murtishaw II, we clarified that “the 1978 statute provides a range of sentencing discretion no less favorable to a defendant than its 1977 counterpart,” we tacitly recognized that there are essentially no differences between the two statutory schemes relevant to our resolution of defendant’s constitutional challenges. (Id. at p. 1026.) For all these reasons, our rationale in denying identical or analogous challenges to the constitutionality of the 1978 death penalty law applies equally here.

Consistent with the foregoing, we decline defendant’s invitation to reconsider our previous holdings that:

The 1977 death penalty statute does not violate the cruel and unusual punishment and due process clauses of the state and federal Constitutions. (People v. Robertson (1989) 48 Cal.3d 18, 64.)

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“Section 190.3, factor (a), as applied, does not fail to sufficiently minimize the risk of wholly arbitrary and capricious action prohibited by the Eighth Amendment.” (People v. Schmeck (2005) 37 Cal.4th 240, 304.)

“ ‘ “[T]he California death penalty statute is not impermissibly broad, whether considered on its face or as interpreted by this court.” ’ ” (People v. Gonzalez (2021) 12 Cal.5th 367, 416 (Gonzalez).) “ ‘ “[S]ection 190.3, factor (a), on its face or as interpreted and applied, [does not] permit[] arbitrary and capricious imposition of a sentence of death.” ’ ” (Ibid.)

“ ‘Except for evidence of other crimes and prior convictions, jurors need not find aggravating factors true beyond a reasonable doubt; no instruction on burden of proof is needed; the jury need not achieve unanimity except for the verdict itself; and written findings are not required.’ ” (People v. Sánchez (2016) 63 Cal.4th 411, 487.)

“ ‘ “[T]he death penalty statute does not lack safeguards to avoid arbitrary and capricious sentencing . . . or constitute cruel and unusual punishment on the ground that it does not require either unanimity as to the truth of aggravating circumstances or findings beyond a reasonable doubt that an aggravating circumstance [except for evidence of other crimes and prior convictions] . . . has been proved, that the aggravating factors outweighed the mitigating factors, or that death is the appropriate sentence.” [Citation.] Nothing in Hurst v. Florida (2016) 577 U.S. [92] . . . , Cunningham v. California (2007) 549 U.S. 270 . . . , Blakely v. Washington (2004) 542 U.S. 296 . . . , Ring v. Arizona (2002) 536 U.S. 584 . . . , or Apprendi v. New Jersey (2000) 530 U.S. 466 . . . , affects our conclusions in this regard.’ ” (Gonzalez, supra, 12 Cal.5th at p. 416; see also People v. Robertson, supra, 48 Cal.3d at p. 63 [the 1977 death penalty law’s “failure to impose a beyond-a-reasonable-doubt

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standard on the decision regarding the appropriateness of death is not violative of equal protection”]; People v. Ghent (1987) 43 Cal.3d 739, 773–774 (Ghent) [under the 1977 death penalty statute, unanimity as to whether uncharged criminal activity has been proved beyond a reasonable doubt is not required].)

“ ‘ “[W]ritten findings by the jury during the penalty phase are not constitutionally required, and their absence does not deprive defendant of meaningful appellate review.” ’ ” (Gonzalez, supra, 12 Cal.5th at p. 417.)

“ ‘ “[T]he federal constitutional guarantees of due process and equal protection, and against cruel and unusual punishment [citations], do not require intercase proportionality review on appeal.” ’ ” (Gonzalez, supra, 12 Cal.5th at p. 417.)

“ ‘ “ ‘[C]apital and noncapital defendants are not similarly situated and therefore may be treated differently without violating’ a defendant’s right to equal protection of the laws, due process of law, or freedom from cruel and unusual punishment.” ’ ” (Gonzalez, supra, 12 Cal.5th at p. 417.)

“ ‘[T]he trial court [is not] constitutionally required to instruct the jury that section 190.3’s mitigating factors [can] be considered only as mitigating factors and the absence of evidence supporting any one should not be viewed as an aggravating factor.’ ” (Gonzalez, supra, 12 Cal.5th at p. 417; see also Ghent, supra, 43 Cal.3d at p. 777 [under the 1977 law, the trial court need not instruct “that evidence of mitigating factors related solely to defendant’s background and character could be considered and used as a basis for a sentence less than death”].) “[T]he absence of a nonunanimity instruction regarding mitigating evidence d[oes] not undermine [a] defendant’s constitutional rights.” (People v. Moore (2011) 51 Cal.4th 1104, 1140.)

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“ ‘Use in the sentencing factors of such adjectives as ‘extreme’

[(modified CALJIC No. 8.85, as given here, section 190.3, factors (d), (g))] and ‘substantial’ [(modified CALJIC No. 8.85, as given here, factor (g))] does not act as a barrier to the consideration of mitigating evidence in violation of the federal Constitution.’ ” (McDaniel, supra, 12 Cal.5th at p. 156; Ghent, supra, 43 Cal.3d at p. 776 [under the 1977 law, concerning use of “ ‘extreme’ ” adjective].) A trial court need not delete assertedly inapplicable statutory sentencing factors from the jury instructions. (McDaniel, at p. 156; Ghent, at pp. 776–777 [1977 law].) “The trial court need not instruct that there is a presumption of life.” (McDaniel, at p. 157.)

“International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.” (People v. Friend (2009) 47 Cal.4th 1, 90.) “ ‘ “ ‘[T]he death penalty as applied in this state is not rendered unconstitutional through operation of international laws and treaties.’ ” ’ ” (Gonzalez, supra, 12 Cal.5th at p. 417.)

V. THE CALIFORNIA RACIAL JUSTICE ACT OF 2020 Defendant contends that racial bias infected every stage of trial proceedings, rendering his conviction and death sentence invalid under the California Racial Justice Act of 2020 (§ 745; Stats. 2020, ch. 317, § 3.5; RJA). We conclude that the circumstances do not establish prejudicial error under the RJA.

A. Applicable Law The RJA prohibits the state from seeking or obtaining a criminal conviction, or seeking, obtaining, or imposing a sentence, “on the basis of race, ethnicity, or national origin.” (§ 745, subd. (a).) “The Legislature passed the RJA in 2020 with a stated aim ‘to eliminate racial bias from California’s criminal justice system’ and ‘to ensure that race plays no role at all in seeking or obtaining convictions or in

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sentencing.’ (Stats. 2020, ch. 317, § 2, subd. (i).)” (People v. Wilson (2024) 16 Cal.5th 874, 944–945.)

As relevant here, a defendant may establish a violation of the RJA by proving that “[t]he judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin.” (§ 745, subd. (a)(1).) A defendant also establishes a violation of the RJA by showing that “[d]uring the defendant’s trial, in court and during the proceedings, the judge, an attorney in the case, a law enforcement officer involved in the case, an expert witness, or juror, used racially discriminatory language about the defendant’s race, ethnicity, or national origin, or otherwise exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.” (§ 745, subd. (a)(2).) This latter provision “does not apply if the person speaking is relating language used by another that is relevant to the case or if the person speaking is giving a racially neutral and unbiased physical description of the suspect.” (Ibid.)

“ ‘Racially discriminatory language’ means language that, to an objective observer, explicitly or implicitly appeals to racial bias, including, but not limited to, racially charged or racially coded language, language that compares the defendant to an animal, or language that references the defendant’s physical appearance, culture, ethnicity, or national origin. Evidence that particular words or images are used exclusively or disproportionately in cases where the defendant is of a specific race, ethnicity, or national origin is relevant to determining whether language is discriminatory.” (§ 745, subd. (h)(4).)

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B. Racially Discriminatory Language Defendant contends the prosecutor used racially discriminatory language, in violation of the RJA, in multiple instances.

1. “Seething with racial hatred” While commenting on the evidence of other sexual offenses during closing argument at the guilt phase of trial, the prosecutor said: “We also know from statements that the defendant made to two of the victims that he was seething with racial hatred. Remember what he told — what he called [S.R.], quote, fucking white bitch. Remember what he told [K.S.], quote, you’re going to be fucked by a n*****. Seething with racial hatred. Those two phrases, those two epithets all part and parcel with a desire to hurt, to control, to dominate, to humiliate.” Later, when speaking about Woolley, the prosecutor said, “[Defendant] had the opportunity to watch [her] through his window. He lived there, and he had the ability to check out her apartment. He was a man seething with racial resentment.” The prosecutor then discussed how defendant likely entered Woolley’s apartment through the broken window.

Defendant asserts that in using this language, the prosecutor “adopted the long and dishonorable tradition of exploiting untested allegations of interracial rape to inflame Americans’ biases so that reason is overwhelmed in a rush toward retribution.”

Context must be considered when determining whether particular statements come within the RJA’s prohibition on uses of racially discriminatory language. (People v. Bankston (2026) 19 Cal.5th 786, 835 (Bankston); see also People v. Chhuon and Pan (2026) 19 Cal.5th 1018, 1087 (Chhuon and Pan).) Viewing the prosecutor’s statements in light of the evidence that was introduced at trial, we conclude that the prosecutor’s argument that defendant was “seething with racial hatred” and “seething with racial

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resentment” did not violate the RJA. The prosecutor’s language did not “appeal[] to racial bias” by using “racially charged or racially coded language” that referenced “defendant’s physical appearance, culture, ethnicity, or national origin.” (§ 745, subd. (h)(4).) Rather, the prosecutor’s comments reflected a reasonable interpretation and application of the words defendant himself used in sexually assaulting other women. Defendant’s language suggested that these crimes were to some extent racially motivated, and the prosecutor could fairly argue that the sexual assault of Woolley was similarly motivated.

2. O.J. Simpson references Defendant also argues that the prosecutor violated the RJA by referring to the O.J. Simpson47 case twice at his trial. We find no error as to the first reference and conclude that even if we were to assume error as to the second reference, any assumed RJA violation is harmless beyond a reasonable doubt.

First, during voir dire, the prosecutor asked the prospective jurors if there was “[a]nybody with a basic distrust of scientists or scientific evidence?” One prospective juror spoke up, saying, “Mine isn’t so much a basic mistrust of scientists, but it’s of the people that handled it before it got to the scientist. That’s where I always get a little concerned.” The prosecutor responded, “As in the O.J. Simpson case, perhaps?” and the prospective juror responded, “Yes, yes.”

47 The record in People v. Simpson (Super. Ct. L.A. County, 1995, No. BA097211) is not part of the record in this appeal, but we take judicial notice, as facts that are not reasonably subject to dispute (Evid. Code, § 452, subds. (g), (h)), that the case involved the trial of African-American former National Football League star Orenthal James Simpson for the murders of his ex-wife Nicole Brown Simpson and Ron Goldman; and that Simpson was found not guilty by a jury after a trial in which DNA evidence was presented by the prosecution and challenged by the defense.

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The second challenged reference to the O.J. Simpson case occurred during closing argument at the guilt phase of trial. In its closing argument, the defense argued that the semen sample on the bedspread was fresher than the semen sample on the bedsheet and raised the possibility of evidence tampering. Counsel told the jury that no one back in 1978 had noticed any stains on the bedspread even though rape or an attempted rape had been suspected and stains had been noted on the bedsheet. Counsel argued, “So what we end up with is in 1978 not one bit of evidence of any stain on [the] bedspread, observations of many stains, some testing positive for acid phosphatate [sic] in 1978 on [the] bed sheet.” Counsel then argued that had the samples on the bedspread been deposited at the same time as the samples on the bed sheet they would have degraded similarly and not produced results that were as different as the evidence at trial showed. Counsel asked, “Why such an enormous difference? Well, the obvious answer is age. Age. The semen is much fresher.” Later, making the same point, counsel said, “if the evidence was contaminated, fiddled with, somebody did something, if somebody did something to the bedspread, then they certainly would have done something to the murder weapon, the sock.”

During rebuttal, when discussing the physical evidence in the case, the prosecutor said, “Now, I never thought in my career that I would actually be confronted with what essentially is the O.J. Simpson defense, but that’s what we have in this case. And you all probably remember one of the investigators assigned to the case went and got a blood sample from O.J. Simpson because that’s what they extracted DNA from back then. And not knowing what a defense attorney was going to do two years later, the guy, because he was assigned to the case, put the blood in the trunk of his car and drove back to the crime scene to do more work with the other investigators. And that allowed the defense attorney two years later to claim that

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the guy took the blood out of the trunk and went and mixed it with the victim’s blood and stuff like that so that there would be — and so that’s how O.J. Simpson’s DNA got at the crime scene rather than the fact that he got cut during the struggle and bled.” He continued, “Well, there’s one thing wrong with the O.J. Simpson defense in this case. . . . [T]he DNA in this case that came off that bedspread came from sperm, came from semen. It didn’t come from anything else. It came from sperm. It came from semen. [¶] If — I’m not sure whether it’s the cops or the scientists that are supposed to be the bad conspirators under [defense counsel’s] theory. But if they planted [defendant’s] DNA, where did they get the semen? Did they sneak up on him in the night? They never got a semen sample from [defendant]. They got a saliva sample. So this is a desperate, ridiculous theory. Can’t blame [defense counsel], he’s doing his job, but you sure don’t have to buy it.” Defendant did not raise a contemporaneous objection to this argument.

In his supplemental briefing, defendant refers to the prosecutor’s references to O.J. Simpson as “a textbook example of racially coded language” prohibited under the RJA. According to defendant, the prosecutor’s argument was calculated to stoke race- based resentment in what he describes as an all-White jury regarding the not guilty verdict in the Simpson case, with that resentment then spilling over to defendant’s case on account of the similar races of the defendants and victims in the two matters.

We find no RJA violation as to the prosecutor’s first challenged reference. However “ill-advised” it may be for a prosecutor to draw comparisons between a proceeding and the O.J. Simpson case (People v. Evans (Ill. 2004) 808 N.E.2d 939, 956), references to the O.J. Simpson case in trial proceedings are not necessarily racially coded. In People v. Dykes (2009) 46 Cal.4th 731, for example, the prosecutor made a passing reference to that case in telling the jurors that he

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understood that the trial was a “ ‘big imposition,’ ” but “ ‘It’s just with the O.J. case, I know you’re reliving some of the big imposition those jurors have on their life but I assure you, as the judge has indicated, when we do break early or oftentimes we’re here before and after you come and go, but there are very important legal issues that we’ve been working on.’ ” (Id. at p. 774.) We observed that “it is not reasonably likely the jury would understand this comment to refer, as defendant claims, ‘to the common view, at least among non-Black jurors, that Simpson got away with murder,’ nor would it, as defendant claims, ‘prejudice the jury in the prosecution’s favor.’ ” (Ibid.)

Moreover, it is not unusual for the use of DNA evidence in the O.J. Simpson case to come up in voir dire, as it did here. (See, e.g., People v. Nadey (2024) 16 Cal.5th 102, 135 [noting one prospective juror’s knowledge of DNA evidence “came only from the ‘OJ Simpson case’ ”]; People v. Miles (2020) 9 Cal.5th 513, 552 [voir dire included asking prospective jurors about their opinion on the O.J. Simpson case because “the prosecutor considered Simpson’s case to be similar to defendant’s case given that both cases relied on DNA evidence and circumstantial evidence”].) In context, the prosecutor’s question to the prospective juror regarding the O.J. Simpson case illuminated the prospective juror’s possible concerns about the handling of DNA evidence by identifying a specific, well-known scenario that might implicate those concerns.48 We conclude that an objective observer would not perceive this specific inquiry as indicative of bias or animus toward defendant, nor as involving racially discriminatory language, coded or otherwise.

The prosecutor’s argument in rebuttal at the guilt phase is a closer issue. Even if we were to assume without deciding that the

48 Both parties acknowledge that the facts of the O.J. Simpson trial were well known at the time of the 2004 trial in this case.

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prosecutor’s argument violated the RJA, we conclude that any such violation was harmless beyond a reasonable doubt. (See Bankston, supra, 19 Cal.5th at pp. 873 [“at least with respect to cases in which judgment was entered before the RJA took effect, we read the RJA as permitting an inquiry into whether a miscarriage of justice occurred”], 879 [concluding “that in cases in which judgment was entered before 2021, the harmless beyond a reasonable doubt standard applies on appeal to review of RJA claims asserting the use of racially discriminatory language”], Chhuon and Pan, supra, 19 Cal.5th at p. 1090; People v. Demolle (2026) 19 Cal.5th 1117, 1201 (Demolle); see also U.S. v. Papajohn (8th Cir. 2000) 212 F.3d 1112, 1121 [the prosecutor’s comparison of the defendant’s defense to the O.J. Simpson defense was not so inflammatory to require a mistrial; the comments were fleeting and it did not draw a direct comparison between the defendant and Simpson]; State v. Taylor (Minn. 2002) 650 N.W.2d 190, 207–208 [concluding that even if a prosecutor’s reference to the O.J. Simpson defense in response to the defendant’s assertion of evidence tampering was misconduct, it did not warrant a new trial]; State v. Thompson (Minn. 1998) 578 N.W.2d 734, 743 [finding a prosecutor’s reference to the defendant thinking, “ ‘Maybe I am not going to get off like O.J. did,’ ” to be misconduct, but harmless in light of the overwhelming evidence of guilt]; cf. DeFreitas v. State (Fla.Dist.Ct.App. 1997) 701 So.2d 593, 601 [when viewed together with other errors, the prosecutor’s invocation of O.J. Simpson in closing argument deprived defendant of a fair criminal trial].)

The prosecutor’s references to the O.J. Simpson case were a minor feature of his rebuttal argument at the guilt phase. (See People v. Barrera (2026) 19 Cal.5th 919, 992 [the prosecutor’s comments during closing argument violated the RJA but were harmless beyond a reasonable doubt where, in part, “the challenged comments were made only briefly and in passing”]; Demolle, supra, 19 Cal.5th at

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p. 1203 [concluding the challenged comments were harmless beyond a reasonable doubt where “the argument as a whole was extensive and fair, while the challenged remarks were brief[ and] contained”].) Compelling evidence of defendant’s culpability was offered at trial, including the DNA evidence that was the subject of the prosecutor’s remarks, as well as the evidence of multiple other sexual offenses committed by defendant. And the prosecutor did not refer to the O.J. Simpson case at the penalty phase. (See Bankston, supra, 19 Cal.5th at p. 880 [finding relevant in its prejudicial analysis that the comments made in violation of the RJA occurred during the penalty phase where,“ ‘ “unlike the guilt determination, ‘the sentencing function is inherently moral and normative, not factual’ ” ’ ”].) We conclude from the above that any assumed error was harmless beyond a reasonable doubt as to both the guilt and penalty phases. 49 C. Racial Bias Defendant also asserts that the prosecutor and the trial court exhibited racial bias during jury selection and in the admission of evidence at trial.

1. Exclusion of African-American jurors Defendant contends the prosecutor violated the RJA by successfully eliminating all African-American prospective jurors from the venire. He asserts that the prosecutor’s “aggressive and disparate questioning” of an African-American prospective juror (J.M.), resulted in her dismissal for cause. The prosecutor then used his first peremptory challenge to strike the only remaining African-American (A.E.) from the panel. Defendant asserts that while Batson requires

49 The dissent would hold that the prosecutor’s two references to O.J. Simpson violate the RJA. (Dis. opn. of Liu, J., post, at pp. 3–4.) But it does not explain its view as to whether the purported error was harmless.

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purposeful discrimination, under the RJA he “need only demonstrate that racial bias — conscious or otherwise — played a role in whitewashing his jury.”

The Attorney General argues that defendant’s claim is not cognizable under the RJA. He asserts that the “plain language of section 745 provides no remedy for a prosecutor’s exhibition of bias directed at venirepersons during jury selection,” and even if the statute were ambiguous on this issue, the RJA’s legislative history establishes that the Legislature intended that racially discriminatory peremptory challenges would be addressed under the contemporaneously enacted Code of Civil Procedure section 231.7, not the RJA. Defendant responds that because Code of Civil Procedure section 231.7 applies only prospectively, and not to cases such as this one that were tried long before its effective date as to criminal cases, the RJA must be deemed applicable here to address racial discrimination in jury selection that would otherwise violate the statute but evade review.

We find the Attorney General’s proffered interpretation of the statutory language more persuasive. “[T]he RJA’s relevant provisions do not encompass bias or animus directed towards persons other than the defendant” (Chhuon and Pan, supra, 19 Cal.5th at p. 1087), such as a prospective juror. Although the dissent finds this view to be “cramped” (dis. opn. of Evans, J., post, at p. 26), the plain language of the provision at issue is directed to the “exhibit[ion of] bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin.” (§ 745, subd. (a)(2).) It is clear this language means such bias or animus was directed toward the defendant and by reason of the defendant’s race, ethnicity, or national origin — rather than toward a prospective juror or by reason of the prospective juror’s race, ethnicity, or national origin. Because a prosecutor’s exercise of a peremptory challenge is not an action taken against a defendant but

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rather against a prospective juror, we conclude that the exercise of a peremptory challenge, standing alone, does not exhibit the requisite bias or animus “towards the defendant because of the defendant’s race, ethnicity, or national origin” within the scope of this provision of the RJA. (§ 745, subd. (a)(2), italics added.) This logic applies with equal force to the prosecutor’s questioning of J.M., who ultimately was dismissed for cause. This questioning, too, was not an action directed toward the defendant.

The dissent would instead adopt an overly expansive view of the statute, encompassing any action designed “to secure a perceived tactical advantage” vis-à-vis the defendant. (Dis. opn. of Evans, J., post, at p. 27.) According to the dissent, such conduct would fall within the RJA’s prohibition against “an unlawful effort to ‘seek, obtain, or impose a sentence on the basis of [the defendant’s] race.’ ” (Dis. opn. of Evans, J., post, at p. 28, quoting § 745, subd. (a).) We are not persuaded that the type of conduct at issue here — permissibly striking one juror using a peremptory challenge, and removing another for cause — fits within the scope of the statute and the commonly understood language it invokes. (North American Title Co. v. Superior Court (2024) 17 Cal.5th 155, 169 [when interpreting a statute, we give the relevant language “ ‘ “ ‘ “ ‘a plain and commonsense meaning’ ” ’ ” ’ ”].)

Even if we were to conclude that the statutory language is ambiguous, “ ‘other aids, such as the statute’s purpose, legislative history, and public policy’ ” (People v. Reynoza (2024) 15 Cal.5th 982, 990) confirm our conclusion that a prosecutor’s exercise of a peremptory challenge does not fall within the scope of this provision of the RJA. As we explain below, the Legislature specifically considered including a subdivision in the RJA prohibiting the exercise of peremptory challenges in which “[r]ace, ethnicity, or national origin was a factor.” (Assem. Bill No. 2542 (2019–2020 Reg. Sess.) § 3, as

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amended July 1, 2020.) The Legislature, however, did not ultimately enact that subdivision in the RJA. Instead, the Legislature decided to enact another bill — Assembly Bill No. 3070 (2019–2020 Reg. Sess.) (Assembly Bill 3070) — to combat conscious and unconscious bias in jury selection. (See Code Civ. Proc., § 231.7, added by Stats. 2020, ch. 318.)

An early version of Assembly Bill No. 2542 (2019–2020 Reg.

Sess.) (Assembly Bill 2542) — the bill that eventually became the RJA — proposed to expressly address peremptory challenges. (See Assem. Bill No. 2542, §§ 3, 3.5, as amended July 1, 2020.) The accompanying legislative findings discussed discrimination in the criminal justice system, including discrimination in jury selection. The findings quoted a Court of Appeal justice as having “observed the legal standards for preventing racial bias in jury selection are ineffective, observing that ‘requiring a showing of purposeful discrimination sets a high standard that is difficult to prove in any context.’ ” (Assem. Bill 2542, § 2, subd. (c), as amended July 1, 2020.)

The bill then set forth two options. The first option provided that a defendant may establish a violation by proving that “[r]ace, ethnicity, or national origin was a factor in the exercise of peremptory challenges” and “need not show that purposeful discrimination occurred in the exercise of peremptory challenges to demonstrate a violation.” (Assem. Bill 2542, § 3, as amended July 1, 2020.) The second option provided that a defendant may establish a violation by proving that “[i]f jury selection was completed prior to January 1, 2021, race, ethnicity, or national origin was a factor in the exercise of peremptory challenges,” and the defendant “need not show that purposeful discrimination occurred in the exercise of peremptory challenges to demonstrate a violation.” (Id., § 3.5, italics added.) The bill provided that the first option would become operative if a separate measure, Assembly Bill No. 3070, did not become effective on or before

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January 1, 2021. (Assem. Bill 2542, § 5, as amended July 1, 2020.) The second option would become operative only if Assembly Bill 3070 “is enacted and becomes effective on or before January 1, 2021.” (Assem. Bill 2542, § 5, as amended July 1, 2020.) As explained by contemporaneous legislative materials, “This bill provides that if AB 3070 is enacted, this bill’s provisions would apply retroactively, while AB 3070’s provisions would apply prospectively.” (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2542 (2019–2020 Reg. Sess.), as amended Aug. 1, 2020, p. 12.) In this way, the early versions of the bill ensured that the RJA would apply to peremptory challenges: if Assembly Bill 3070 passed, it would apply retroactively only, and if Assembly Bill 3070 did not pass, it would apply both retroactively and prospectively.

The two options relating to jury selection were amended later in the legislative process. With the first option, a defendant could establish a violation by proving that “[r]ace, ethnicity, or national origin was a factor in the exercise of peremptory challenges” and “need not show that purposeful discrimination occurred in the exercise of peremptory challenges.” (Assem. Bill 2542, § 3 as amended Aug. 25, 2020.) The second option, however, no longer allowed a violation to be shown based on the exercise of peremptory challenges. (Id., § 3.5.) Specifically, the second option deleted the following language: “If jury selection was completed prior to January 1, 2021, race, ethnicity, or national origin was a factor in the exercise of peremptory challenges. The defendant need not show that purposeful discrimination occurred in the exercise of peremptory challenges to demonstrate a violation of subdivision (a).” (Ibid.) This second option would “only become operative if Assembly Bill 3070 is enacted and becomes effective on or before January 1, 2021, in which case [the first option in] this bill shall not become operative.” (Id., § 7.) In other words, later versions of the bill envisioned that the RJA would prohibit the exercise of peremptory

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challenges in which “[r]ace, ethnicity, or national origin was a factor” only if the separate bill, Assembly Bill 3070, did not become effective on or before January 1, 2021. (Assem. Bill 2542, § 3, as amended Aug. 25, 2020.) As explained by contemporaneous legislative materials, the bill “[p]rovides contingency language so that the bill’s provisions related to peremptory challenges would only go into effect if AB 3070 is not signed into law.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill 2542 (2019–2020 Reg. Sess.) as amended Aug. 25, 2020, p. 8.)

This approach was reflected in the version of Assembly Bill 2542 that was passed by the Legislature and signed by the Governor. (See Stats. 2020, ch. 317, §§ 3, 3.5, 7.) The Legislature also passed Assembly Bill 3070, which became effective on January 1, 2021. (Stats. 2020, ch. 317, § 7; see Stats. 2020, ch. 318; Cal. Const., art. IV, § 8, subd. (c) [statute goes into effect on January 1 following the enactment]; People v. Alford (2007) 42 Cal.4th 749, 753, fn. 2.) The second option appearing within Assembly Bill 2542, which did not contain the provision addressing the use of peremptory challenges, therefore became operative. (Stats. 2020, ch. 317, § 7.)

Our review of this bill and its legislative history leads us to conclude that the Legislature did not intend the RJA to apply to the exercise of a peremptory challenge of a prospective juror. As detailed above, the Legislature specifically considered — but ultimately did not enact — a subdivision in the RJA prohibiting the exercise of peremptory challenges in which “[r]ace, ethnicity, or national origin was a factor.” (Assem. Bill 2542, § 3, as amended Aug. 25, 2020.) “ ‘The rejection of a specific provision contained in an act as originally introduced is “most persuasive” that the act should not be interpreted to include what was left out.’ ” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1107; accord, City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 89 [finding relevant that specific

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language in an early version of a bill was deleted from the final version of the statute].) Moreover, the Legislature has since repeatedly amended the RJA — in 2022, 2023, 2024, and 2025 — and at no point did the Legislature add a subdivision expressly addressing peremptory challenges.

References to discrimination in jury selection in the legislative materials do not require a different conclusion. It is true that the RJA’s accompanying legislative findings mention discrimination in jury selection, in addition to other forms of discrimination in the criminal justice system. (Stats. 2020, ch. 317, § 2(c).) However, those legislative findings accompanied two options in the bill, one which addressed discrimination in jury selection and one which did not, and only the latter became effective. These accompanying findings do not require us to disregard the Legislature’s decision to have the use of peremptory challenges addressed through Assembly Bill 3070, rather than the RJA. (See People v. Soto (2011) 51 Cal.4th 229, 245 [“ ‘The rejection by the Legislature of a specific provision contained in an act as originally introduced is most persuasive to the conclusion that the act should not be construed to include the omitted provision’ ”].) “Furthermore, while uncodified legislative findings may be used as an aid in construing a statute, they ‘ “ ‘do not confer power, determine rights, or enlarge the scope of a measure.’ ” ’ ” (Chhuon and Pan, supra, 19 Cal.5th at p. 1104, fn. 12; cf. dis. opn. of Evans, J., post, at p. 30 [contending that “[a]ny discussion of Legislative intent . . . must first begin with the uncodified findings” (italics added)].)

It is also true that legislative materials associated with subsequent amendments to the RJA include some references to discrimination in jury selection. (See Fact Sheet, Assem. Bill No. 256 (2021–2022 Reg. Sess.) May 24, 2021, p. 1 [“Far too many Californians have had their convictions and sentences upheld despite: [¶] Blatantly racist statements by attorneys, judges, jurors and expert

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witnesses; [¶] The exclusion of all, or nearly all Black or Latinx people from serving on a jury; and [¶] Stark statistical evidence showing systemic bias in charging and sentencing”]; see also Assem. Com. on Public Safety, Background Information Request for Assem. Bill No. 1113 (2023–2024 Reg. Sess.) p. 3.) But these general statements must be considered in the context of the statute as a whole, keeping in mind the specific mechanisms the Legislature adopted to prohibit racial discrimination in our courts. The materials do not explain in any way how the specific provisions of the RJA purport to address discrimination in jury selection. We do not believe these references demonstrate that the Legislature intended for the RJA to apply to the exercise of peremptory challenges, in spite of omitting a subdivision that would expressly so provide.50 In sum, we conclude that the RJA does not apply to the questioning of or exercise of a peremptory challenge of a prospective juror. Both the language of the statute, and the Legislature’s intent, reflect that it chose to address peremptory challenges in a statutory scheme separate and apart from the RJA. We therefore conclude that defendant’s claim regarding the prosecutor’s questioning of a

50 The dissent correctly rejects defendant’s claim that a defendant can “necessarily demonstrate that the RJA was violated merely based upon his related claim that Batson/Wheeler was violated.” (Dis. opn. of Evans, J., post, at p. 37, fn. 5.) Beyond acknowledging that a “separate analysis” (ibid.) would be required, however, the dissent never explains how the RJA should operate in this context when a defendant asserts a prosecutor acted with implicit bias in striking a prospective juror — including where, as here, a majority of the court concludes there was no prima facie showing of discrimination in excusing any prospective juror.

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prospective juror and use of a peremptory challenge, standing alone, is not cognizable under the RJA.51 2. Alleged reliance on race of prior victims As previously discussed (see ante, pt. III.A.4.), the trial court determined that evidence of defendant’s five prior, uncharged instances of sexual misconduct was admissible under Evidence Code section 1108. In making its ruling, the trial court relied on several similarities between the uncharged and charged conduct. Specifically, the incidents all occurred within a nine-year period, all five victims were White, the victims were of a similar age, and four of the five victims were acquainted with defendant. (See Falsetta, supra, 21 Cal.4th at p. 917.)

Defendant contends the trial court exhibited implicit racial bias in violation of the RJA when it considered the race of the witnesses as relevant to the admissibility of the uncharged acts evidence. But it was not indicative of bias for the trial court to take the victims’ race into consideration in determining the admissibility of the prior assaults. We have frequently noted that victims were of the same race in describing the degree of similarity across charged crimes, or between charged and uncharged crimes. (See People v. Edwards

51 The dissent raises concerns regarding the potential “utiliz[ation of] other aspects of the jury selection process in a race-conscious manner,” “strik[ing] a Black judge under Code of Civil Procedure section 170.6 on the basis of their discriminatory belief . . . that judges may act more sympathetically towards a member of their own race,” “preferentially exclud[ing] Black jurors for cause or hardship,” and prosecutorial “target[ing of] only Black jurors for criminal background checks” in evaluating them. (Dis. opn. of Evans, J., post, at p. 29.) None of this occurred. Indeed, the dissent’s entire premise — that the prosecutor struck a juror “based on a discriminatory belief that any juror who shares a racial identity with a defendant cannot be impartial” (id. at p. 28) — is not supported by the record in this case.

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(2013) 57 Cal.4th 658, 712 [noting that victims shared the same race in upholding trial court’s ruling admitting evidence of prior killing in murder trial]; People v. Lynch (2010) 50 Cal.4th 693, 757 [evidence of an uncharged confrontation between defendant and a woman did not violate Evid. Code, § 1101 in part because the individual involved in that incident and the “victims in the charged crimes were Caucasian elderly women”]; Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1224 [fact that each of a defendant’s victims “was a young, single Caucasian female” contributed toward cross-admissibility of evidence regarding the killings and weighed against severance of charges]; People v. Kraft (2000) 23 Cal.4th 978, 1031 [the fact that all of a defendant’s victims were White males between the ages of 18 and 25 similarly contributed toward cross-admissibility that cut against severance of murder charges].) The victims’ race was also salient here because defendant’s statements to S.R. and K.S. suggested a possible motivation to sexually assault White women. On this record, we conclude that defendant has not established that the trial court exhibited “bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin.” (§ 745, subd. (a)(1).)

In arguing that the trial court violated the RJA, defendant relies on People v. Harris (1998) 60 Cal.App.4th 727. That case is readily distinguishable. The defendant in Harris, a mental health nurse, was charged with committing several sexual offenses against two patients at the hospital where he worked. The trial court admitted evidence of the defendant’s prior conviction of burglary with the infliction of great bodily injury, the result of a rape, pursuant to Evidence Code section 1108. (Harris, at p. 735.) The trial court concluded the prior offense was relevant and probative because “it involves Caucasian women. It involves Caucasian [women] that [are] in this 20 or 30 year age bracket. It involves coercion, some element of force. It involves vaginal involvement.” (Id. at p. 740.) The Court of Appeal reversed,

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noting that the prior offense occurred 23 years prior to the charged conduct and was significantly more violent than the “ ‘breach of trust’ sex crimes” he was charged with. (Id. at p. 741.) The Court of Appeal further noted that the defendant was also Caucasian and “the ‘20’s or 30’s’ is a wide age group that includes the majority of the victims of sexual assaults,” and therefore, those stated “ ‘similarities’ ” were not significant. (Id. at p. 740.) The Court of Appeal concluded that, despite the similarities in age and race of the victims upon which the trial court relied, the prior conduct was temporally remote, inflammatory, and likely to confuse and distract the jury. (Id. at p. 741.)

Harris thus involved a case-specific determination that the race of the victims, along with the other similarities between the incidents before the court, was not enough to justify the admission of evidence concerning the decades-earlier rape in that matter. Here, in contrast, there were several similarities between the charged and uncharged offenses, including the narrower time span in which the offenses occurred and that four of the five victims were acquainted with defendant prior to the attacks. Defendant misreads Harris by gleaning from it the overbroad proposition that a trial court may never rely on the fact that victims are of a particular race when determining whether to admit propensity evidence. Nor is this position required under the RJA as applied to this case.

Relatedly, we reject defendant’s argument that the trial court’s asserted failure to exclude some of the allegations or the two instances of racial language was indicative of racial bias or animus. We previously rejected defendant’s argument that the trial court abused its discretion when it declined to exclude this evidence (see ante, pt. III.A.4.g.) and defendant’s reframing of his claim under the RJA does not alter this conclusion. When making its ruling, the trial court did not focus on the fact that defendant had a different racial identity

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than the victims; rather, it focused on the fact that the victims all had the same racial identity.

Accordingly, we conclude that the trial court’s consideration of the victims’ race as a factor in its decision to admit evidence regarding their sexual assaults did not demonstrate implicit racial bias toward defendant in violation of the RJA.

VI. CUMULATIVE ERROR

Defendant contends the cumulative prejudicial effect of the asserted errors in the guilt and penalty phases of his trial requires reversal of his conviction and death sentence even if none individually compels reversal. We have found one error — the trial court’s erroneous admission of the record of defendant’s misdemeanor conviction — and we have assumed error in the admission of time of death evidence, the instruction of the jury with CALJIC 8.71, and the prosecutor’s argument during rebuttal regarding the O.J. Simpson case, but found no resulting prejudice. We further conclude that even if these actual and assumed errors are combined for purposes of analysis, there was no prejudicial error affecting any stage of the proceedings.

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VII. DISPOSITION

We affirm the judgment.

GUERRERO, C. J.

We Concur: CORRIGAN, J. KRUGER, J. GROBAN, J. FUJISAKI, J.*

*

Associate Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

S126387

Dissenting Opinion by Justice Liu

I join Justice Evans’s persuasive dissenting opinion. I write to address the prosecutor’s references to the O.J. Simpson case. The Racial Justice Act of 2020 (RJA) bans language that implicitly appeals to racial bias regardless of whether it was spoken with discriminatory intent (Pen. Code, § 745, subds. (a)(2), (h)(4)), and this case is a prime example of why that matters.

The prosecutor twice referred to the Simpson case. He first mentioned the case during voir dire when probing a prospective juror’s views on scientific evidence. (Maj. opn., ante, at p. 147.) He then discussed the case at greater length during his guilt phase rebuttal (id. at pp. 148–149), not long after he described defendant Larry Hazlett as “ ‘seething with racial hatred’ ” and “ ‘racial resentment’ ” (id. at p. 146).

Today’s opinion properly admonishes prosecutors from “draw[ing] comparisons between a proceeding and the O.J. Simpson case.” (Maj. opn., ante, at p. 149.) A key reason why such comparisons are “ ‘ill-advised’ ” is their tendency to activate jurors’ implicit biases against Black defendants. (Ibid.) As noted in an article cited by the Legislature when it enacted the RJA, “O.J. Simpson has become an avatar of the brute caricature among white people, and prosecutors cast Simpson in this role. Using Simpson’s name in prosecutors’ summations may cause jurors to associate Black defendants with violent

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abuse.” (Prasad, Implicit Racial Biases in Prosecutorial Summations: Proposing an Integrated Response (2018) 86 Fordham L.Rev. 3091, 3107, fn. omitted; see Stats. 2020, ch. 317, § 2, subd. (e).)

But the court, as in past cases, goes no further than a brief admonition. (See People v. Barrera (2026) 19 Cal.5th 919, 1000 (conc. opn. of Liu, J.) [“While I am all for admonishing litigants to avoid improper language, the fact is that the court’s admonitions, however strongly worded, carry no legal consequence.”].) It finds no RJA violation as to the prosecutor’s reference to the Simpson case during voir dire and, without explanation, only assumes a violation as to the prosecutor’s extended discussion of the Simpson case during guilt phase closing argument. (Maj. opn., ante, at pp. 149–151.) It is not clear why the court holds back from finding that the prosecutor’s second reference to the Simpson case violated the RJA. I worry that the reluctance to identify the violation or to explain why it “is a closer issue” (id. at p. 150) once again “threatens to significantly dilute the RJA’s prohibition on language that ‘implicitly appeals to racial bias’ ” (Barrera, at p. 1000 (conc. opn. of Liu, J.)).

The issue does not seem especially close. At the time of Hazlett’s trial, which occurred in 2004, “it would have been hard to think of any recent case in the American justice system more sensational and racially polarizing than the Simpson trial.” (People v. Miles (2020) 9 Cal.5th 513, 613 (dis. opn. of Liu, J.).) That year, 87% of White Americans, compared to 29% of Black Americans, believed Simpson was guilty of murder, according to one poll. (NBC News, NBC News Poll: 10 years after Simpson verdict (June 6, 2004) <https://www.nbcnews.com/id/ wbna5139346> [as of Aug. 27, 2026]; all Internet citations in

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this opinion are archived by year, docket number, and case name at <https://courts.ca.gov/opinions/cited-supreme-court- opinions>.) Discussing the Simpson case to an all-White jury in the capital trial of a Black man accused of murdering a White woman “seems like playing with fire” (Miles, at p. 613 (dis. opn. of Liu, J.)), as it risks “evok[ing] negative feelings [about the defendant] in jurors who believe that Simpson was not punished for his alleged crimes” (Prasad, supra, 86 Fordham L.Rev. at p. 3107). It was perfectly appropriate for the prosecutor to discredit an assertion of evidence tampering during closing argument. “But surely there [were] less racially charged ways of doing so.” (Miles, at p. 614 (dis. opn. of Liu, J.).)

There is no indication that the prosecutor sought to inflame the all-White jury by mentioning the Simpson case in his closing rebuttal. But even language spoken with proper intentions can trigger “ ‘the associations we make automatically, outside of our conscious awareness, between certain groups and certain characteristics.’ ” (People v. Bankston (2026) 19 Cal.5th 786, 890 (conc. opn. of Liu, J.).) The Legislature was especially concerned about this possibility; that is why it wrote the RJA to prohibit language, “whether or not purposeful,” that “implicitly appeals to racial bias.” (Pen. Code, § 745, subds. (a)(2), (h)(4), italics added.) The prohibition focuses on the effect of the speaker’s words, not the intent behind them. Referencing the Simpson case so close to guilt deliberations and shortly after commenting on the racially charged nature of Hazlett’s crimes significantly risked priming the all-White jury to not let another Black man accused of murdering a White woman “get away with it.” This is precisely the kind of implicit appeal to racial bias that courts must no

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longer tolerate. (Stats. 2020, ch. 317, § 2, subd. (i) [racial bias “in any form or amount . . . is intolerable”].)

The prosecutor’s reference to the O.J. Simpson case during closing argument was a paradigmatic instance of “language that, to an objective observer, . . . implicitly appeals to racial bias” (Pen. Code, § 745, subd. (h)(4)), and I would so hold.

LIU, J.

I Concur: EVANS, J.

S126387

Dissenting Opinion by Justice Evans

Larry Kusuth Hazlett, an African-American man, was tried by an all-White jury of capital murder under the theory that he raped and murdered Tana Woolley, a White woman, in a fit of racial hatred. In selecting Hazlett’s jury, the prosecutor used his first peremptory challenge to remove the only Black prospective juror from the venire and immediately accepted the jury as constituted. At trial, the prosecutor introduced evidence that Hazlett had sexually assaulted four other White women. In countering Hazlett’s defense that the DNA evidence was compromised, the prosecutor compared Hazlett’s trial to the notoriously racialized O.J. Simpson case. After finding him guilty of capital murder, the jury sentenced Hazlett to death.

Today’s opinion holds that in challenging the prosecutor’s removal of the last remaining Black prospective juror, Hazlett failed to make a prima facie case of discrimination under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). I disagree. The prosecutor’s immediate removal of the lone Black prosecutive juror — in a case that was highly racially fraught with a special risk of discriminatory animus — raised an inference of discrimination, requiring the prosecutor to state his reasons for removing the juror. Thus, the trial court’s failure to require the prosecutor to state his reasons for the prospective juror’s removal violated Hazlett’s right to a fair and impartial jury pursuant to Batson/Wheeler. Since the passage of time makes it unrealistic

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for proper recollection and evaluation of any reason (Snyder v. Louisiana (2008) 552 U.S. 472, 486 (Snyder)), I would reverse the judgment.

This is not an ordinary case in which “mak[ing] a prima facie case after the excusal of only one or two members of a group is very difficult.” (People v. Bell (2007) 40 Cal.4th 582, 598, fn. 3.) As we have noted, “circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal.” (Ibid.) This is that case.

I also write separately to disagree with the majority’s conclusion that a defendant cannot raise a challenge to a prosecutor’s discriminatory use of peremptory challenges under the California Racial Justice Act of 2020 (RJA) (Pen. Code, § 745; Stats. 2020, ch. 317, § 3.5.).1 The fundamental and overarching purpose of the RJA was “ ‘to eliminate racial bias from California’s criminal justice system’ ” and “ ‘to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.’ ” (People v. Bankston (2026) 19 Cal.5th 786, 895, quoting Stats. 2020, ch. 317, § 2, subd. (i).) The discriminatory use of peremptory challenges — long regarded as a significant source of racial discrimination that infects our criminal justice system — was a significant concern for a Legislature intent on eradicating racism from the system entirely. Even a cursory review of the RJA’s uncodified findings reveals that, when enacting the RJA, the Legislature explicitly detailed concerns that prior law governing the exercise of peremptory challenges

1 Further unspecified statutory references are to the Penal Code.

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was deficient and that it wished to change these shortcomings to address the discrimination that prior law had tolerated.

Notwithstanding these express findings, today’s opinion decides that what the Legislature actually intended was to create a silent, nontextual exemption under the RJA for discriminatory peremptory challenges. Under this exception, courts adjudicating RJA claims must turn a blind eye to discriminatory peremptories, no matter how clearly the record demonstrates that prosecution challenges were based on bias. The text of the RJA provides no support for the majority’s conclusion. And the legislative history upon which the majority seeks to bolster its decision is, at best, ambiguous. Because the majority’s interpretation is so directly at odds with the RJA’s stated purpose, I cannot join it.

With respect, I dissent.

I.

THE BATSON/WHEELER CLAIM

Our state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on race or ethnicity. (See Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276–277.) “A party may not use peremptory challenges to remove prospective jurors solely on the basis of group bias. Group bias is a presumption that jurors are biased merely because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (People v. Fuentes (1991) 54 Cal.3d 707, 713.)

In evaluating a Batson/Wheeler claim, we first determine whether the defendant made out a prima facie case of discrimination. A prima facie showing requires that the defendant demonstrate “that the totality of the relevant facts

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gives rise to an inference of discriminatory purpose.” (People v. Scott (2015) 61 Cal.4th 363, 383 (Scott).) If such showing is made, the proceedings continue to the second stage where the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. (Batson, supra, 476 U.S. at p. 94.) If the prosecution tenders a race-neutral reason, the proceedings continue to the third stage where the trial court decides whether the defendant has proved purposeful racial discrimination. (Purkett v. Elem (1995) 514 U.S. 765, 767.)

This is a first stage case where the defendant must establish a prima facie showing — which, under the appropriate standard, would mean even an inference — of racial discrimination. A prima facie burden is “low” (Scott, supra, 61 Cal.4th at p. 384) and “ ‘not onerous’ ” (Wade v. Terhune (9th Cir. 2000) 202 F.3d 1190, 1197). Proof of a prima facie case may be made from any information in the record available to the trial court. (Wheeler, supra, 22 Cal.3d at pp. 280–281.) This information can include a showing that the prosecution struck most or all of the members of the identified group from the venire or has used a disproportionate number of peremptory challenges against the group. (Ibid.) In addition, the defendant being a member of the excluded group, and the alleged victim being a member of the group to which the majority of the remaining jurors belong, are relevant in proving a prima facie case. (Ibid.)

“In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many.” (Flowers v. Mississippi (2019) 588 U.S. 284, 298 (Flowers).) “[T]he exercise of even a single peremptory challenge solely on the basis of race or ethnicity offends the guarantee of equal protection of the laws

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under the Fourteenth Amendment to the federal Constitution. [Citations.] Such conduct also violates a defendant’s right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution.” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157 (Gutierrez).)

After conducting voir dire and excusing a number of prospective jurors for hardship or cause, the prosecutor exercised his first peremptory challenge, immediately striking Prospective Juror A.E. Defense counsel objected under Batson/Wheeler, arguing the prosecutor struck A.E. “for the sole reason she’s African-American” and noted that there were no African Americans left in the jury pool. Counsel continued, “I believe that at this stage . . . it’s appropriate for the Court to ask the prosecutor for his reasons . . . other than the fact that she’s African-American, the only African-American left on the possible panel.”

When the trial court asked the prosecutor if he wanted to respond, the prosecutor stated, “I do not” and added his dismay that defense counsel initially objected in front of other prospective jurors, asserting it did “nothing but point the finger at me as some sort of racist or . . . bigot.” The prosecutor stated he was not required to articulate his reason for striking Prospective Juror A.E. unless the court found that there was a prima facie case of racial discrimination. The trial court ultimately decided that it was “not prepared to order the D.A. to respond.”

Defense counsel requested the court to find that the prosecutor had not stated a race-neutral reason for striking Prospective Juror A.E. Counsel again pointed out that there were no other African Americans in the venire, including the

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jury box. Counsel asserted there was no indication in Prospective Juror A.E.’s questionnaire or voir dire responses that she was biased for or against the death penalty and was “not aware of any rational explanation the prosecutor could offer.” Counsel further asked the court to consider the circumstances under which the prosecutor had questioned Prospective Juror J.M.’s alleged inability to fairly consider all the evidence, namely, graphic crime scene photographs. (See Code Civ. Proc., § 225 [challenges; definition; classes and types].) Counsel asserted the prosecutor’s manner of questioning Prospective Juror J.M. “could only [be] categorize[d] as browbeating” and that the prosecutor misstated the law in implying to J.M. that she would be “forced” to look at graphic photographs in this case. Counsel argued that these circumstances established a prima facie case of discrimination.

After reiterating that it would not ask the prosecutor to provide a basis for the removal of Prospective Juror A.E., the court gave the prosecutor another opportunity to explain his removal of A.E. on the record. Instead, the prosecutor responded that the questioning of Prospective Juror J.M. was “completely irrelevant” and the question he asked J.M. “sounded like exactly the same question that counsel propounded to . . . other prospective jurors.” While the trial court recalled that several prospective jurors had been asked similar questions, the court did not address defense counsel’s characterization of the prosecutor’s questioning of Prospective Juror J.M. as “browbeating.” The prosecutor ultimately declined the trial court’s invitation to articulate any reason for striking A.E.

In denying the Batson/Wheeler motion, the trial court stated its belief that a race-neutral reason existed for striking Prospective Juror A.E. Neither the prosecutor nor the court,

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however, ever articulated what that reason could be. The trial court further opined, “I don’t believe there’s a prima facie showing that the D.A. is somehow discriminating on, um — against any particular class of individual.” Defense counsel maintained his belief that “a prima facie case has been made” since “there is nobody left who is African-American.”

After the jury was selected, defense counsel renewed his Batson/Wheeler motion, moving for the trial court to reseat Prospective Juror A.E. or, in the alternative, for a new jury panel. The trial court denied the motions. Given the circumstances of this case, we independently review the record to determine whether it supports an inference that the prosecutor excused a juror on a discriminatory basis. (Maj. opn., ante, at pp. 26–27.)

I would hold that Hazlett made a prima facie showing of unlawful discrimination. In considering the relevant circumstances, the record supports an inference (all that is required to establish a prima facie case) that the prosecutor struck Prospective Juror A.E., the sole remaining Black juror, because of her race. (People v. Rhoades (2019) 8 Cal.5th 393, 429 [explaining certain types of evidence that are “ ‘especially relevant’ ”]; see also Batson, supra, 476 U.S. at p. 97 [relevant circumstances include a “ ‘pattern’ of strikes against black jurors” and “the prosecutor’s questions and statements during voir dire examination”].)

Four circumstances “loom large” (Flowers, supra, 588 U.S.

at p. 285) in assessing this first stage Batson/Wheeler challenge: (1) the prosecutor removed the last remaining juror of Hazlett’s minority race; (2) the prosecutor used his first peremptory strike to achieve an all-White jury and immediately accepted the jury

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as constituted; (3) the case was highly racially fraught, involving multiple interracial crimes, a theory Hazlett was motivated by racial hatred, prosecutorial remarks that evoked offensive racial imagery, and a comparison to the trial of O.J. Simpson; and (4) the racial elements present in this case pose a special risk of discriminatory animus — a Black male defendant, a White female rape and homicide victim, four additional White female rape victims, an all-White jury, and a capital trial in which jurors decide whether to impose the penalty of death. In light of these circumstances, Hazlett established a prima facie case of discrimination that required the trial court to solicit and evaluate the prosecutor’s proffered reasons for striking the challenged juror.

First, in striking Prospective Juror A.E., the prosecutor removed the last remaining juror of Hazlett’s race. This fact alone has been found sufficient to establish a prima facie case of discrimination. (See, e.g., U.S. v. Chalan (10th Cir. 1987) 812 F.2d 1302, 1314 [striking the last remaining juror of defendant’s race is sufficient to raise an inference of discrimination]; Reynolds v. State (Fla. 1991) 576 So.2d 1300, 1302 [“[t]he act of eliminating all minority venire members, even if their number totals only one” created a strong likelihood of a racially discriminatory motive that “shifts the burden to the state to justify the excusal”]; Hollamon v. State (Ark. 1993) 846 S.W.2d 663, 666 [“defendant must first establish a prima facie case of purposeful discrimination, which the appellant clearly did in this case when he pointed to a peremptory strike by the state dismissing the sole black person on the jury”]; Highler v. State (Ind. 2006) 854 N.E.2d 823, 827 [removal of the only Black juror on the panel “ ‘raise[s] an inference that the juror was excluded on the basis of race’ ”]; Commonwealth v.

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Harris (Mass. 1991) 567 N.E.2d 899, 903 [“a party contesting the use of a single peremptory challenge can make a prima facie showing rebutting the presumption that the challenge was properly used simply by demonstrating that he is a member of a constitutionally protected, discrete community group, and that the only prospective juror of the same group has been peremptorily challenged”]; City of Seattle v. Erickson (Wn. 2017) 398 P.3d 1124, 1126 [adopting “the bright-line rule” “that the peremptory strike of a juror who is the only member of a cognizable racial group constitutes a prima facie showing of racial discrimination requiring a full Batson analysis by the trial court”]; People v. Portley (Colo.App. 1992) 857 P.2d 459, 464 [“we adopt the rule announced in [Chalan] and hold that if no members of a cognizable racial group are left on a jury as a result of the prosecutor’s exercise of peremptory challenges” a defendant has made a prima facie case of discrimination].)

While other courts have adopted a per se rule that striking the last remaining juror of a defendant’s race is unlawful, this court has not yet had occasion to consider such a rule. However, we have repeatedly recognized the relevance of whether a juror — or alternate juror — of a particular race remains on the impaneled jury. (See, e.g., People v. Reed (2018) 4 Cal.5th 989, 1000 [“While acceptance of one or more black jurors by the prosecution does not necessarily settle all questions about how the prosecution used its peremptory challenges, these facts nonetheless help lessen the strength of any inference of discrimination that the pattern of the prosecutor’s strikes might otherwise imply”]; People v. Garcia (2011) 52 Cal.4th 706, 747– 748 [“ultimate inclusion on the jury of members of the group allegedly targeted by discrimination indicates ‘ “good faith” ’ in the use of peremptory challenges, and may show under all the

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circumstances that no Wheeler/Batson violation occurred”]; see also People v. Battle (2021) 11 Cal.5th 749, 777 (Battle) [the retention of alternates lessens any inference of discrimination].)

In addition to sister states that have adopted a per se rule, there is ample federal case law recognizing the significance of striking the last remaining juror of a defendant’s race. For example, in Crittenden v. Ayers (9th Cir. 2010) 624 F.3d 943, the Ninth Circuit held the defendant, an African-American man, made a prima facie case of discrimination where the prosecution struck the only Black prospective juror. (Id. at pp. 955–956 [vacating the district court’s denial of the defendant’s writ of habeas corpus and remanding for a third-step determination].) The court reasoned that while striking the only and last remaining Black juror may not alone establish a prima facie case, it was that factor — along with the prosecutor’s lessfavorable rating for the Black prospective juror than her White counterparts, who had comparable hesitancy and opposition to the death penalty — that raised an inference of discrimination. (Ibid.) Similarly, in U.S. v. Collins (9th Cir. 2009) 551 F.3d 914, the Ninth Circuit held the defendant made a prima facie case of discrimination where the prosecution struck the only Black prospective juror. (Id. at pp. 921–923.) As in Crittenden, the Collins court reasoned that, while striking the only and last remaining Black juror may not by itself establish a prima facie case, it was that factor along with a comparative juror analysis that established a prima facie case. (Id. at pp. 920–921.) The majority decision today downplays the significance of striking the last juror of a defendant’s race in the totality of the circumstances analysis.

Second, the prosecutor used his first peremptory strike to effectively remove all Black jurors from the venire and

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immediately accepted an all-White jury. While recognizing this factor as significant, today’s opinion fails to attribute proper significance to the prosecutor’s conduct. (See maj. opn., ante, at pp. 28–29; Battle, supra, 11 Cal.5th at p. 777 [the fact that the prosecutor did not strike the challenged juror “right away, but instead passed on her for several rounds before striking her . . . tends to suggest that [her] later challenge was not based on race”].) The prosecutor used his first peremptory strike against the sole remaining African-American prospective juror. The prosecutor then proceeded to accept the jury as constituted. It was only after defense counsel subsequently exercised several peremptory strikes that the prosecutor struck three additional prospective jurors. Ultimately, the impaneled jury, including the alternate jurors, was all-White. The prosecutor’s conduct raised an inference of a discriminatory motive: to achieve an all- White jury. The jury’s all-White composition “serves as standalone evidence to inform our step-one analysis,” and it is “particularly germane where the case was racially charged.” (Battle, supra, 11 Cal.5th at p. 774.)

Third, this case was highly racially fraught and “the salient racial issues at play are significant.” (Battle, supra, 11 Cal.5th at p. 774.) Given the nature of the case, the record reveals case-specific reasons why the prosecutor would be motivated to exclude a particular class of jurors and seek an all- White jury. (See People v. Williams (1989) 48 Cal.3d 1112, 1129 [“the social, racial and sexual overtones [of the case] were precisely the kind which could ‘most effectively prejudice’ defendant”]; see Powers v. Ohio (1991) 499 U.S. 400, 416 (Powers) [“Racial identity between the defendant and the excused person might in some cases be the explanation for the prosecution’s adoption of the forbidden stereotype, and if the

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alleged race bias takes this form, it may provide one of the easier cases to establish both a prima facie case and a conclusive showing that wrongful discrimination has occurred”].) During jury selection, the jurors were frequently asked whether Hazlett’s race would impact their ability to be fair. The prosecution’s theory was that Hazlett was motivated by racial animus towards White women, and the prosecutor introduced evidence of prior sexual assaults of White women. This theory was reinforced throughout the trial, exacerbating the risk of racial prejudice presented by this case.

Reinforcing the racialized nature of this case, the prosecutor evoked offensive racial imagery and themes. For example, the prosecutor asked an expert whether Hazlett was “irresistibly impelled to savagely rape women,” described the prior sexual assaults as Hazlett having “savagely” raped four women, and described the capital offense as Hazlett having “savagely” raped and murdered the victim. (See Bennett v. Stirling (D.S.C. 2016) 170 F.Supp.3d 851, 866 [granting capital defendant’s petition for writ of habeas corpus where the prosecutor made “multiple statements clearly calculated to excite the jury with racial imagery and stereotypes” involving “racial issues [such] as the Petitioner’s interracial sexual relations, [and] a crime victim being chased by black savages”].) And in closing argument, the prosecutor compared Hazlett’s case to O.J. Simpson’s case. (See dis. opn. of Liu, J., ante, at pp. 3–4.) Needless to say, “[r]ace was a recurrent theme throughout the capital [trial], a theme designed to implant both racial fears and prejudices in the mind of the jury by playing upon ancient staples of racial disparagement and discrimination.” (Bennett v. Stirling (4th Cir. 2016) 842 F.3d 319, 327 [affirming the district court’s grant of habeas corpus relief].) Ultimately, I disagree

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with the majority’s insistence that there are race-neutral reasons so apparent that they would dispel any inference of racial discrimination.

Fourth, the racial elements of this case carry a special risk of discriminatory animus. The “ ‘[r]acial identity between the defendant and the excused person,’ ” as well as “the victim and the majority of remaining jurors, raises heightened concerns about whether the prosecutor’s challenge was racially motivated.” (People v. O’Malley (2016) 62 Cal.4th 944, 980.) Hazlett, a Black man, was charged with raping and killing a White woman. Like Hazlett, the stricken juror was African American. Like all of the members of the impaneled jury, the victim was White. These racial elements are highly relevant. (See People v. Holt (1997) 15 Cal.4th 619, 660 [“[A]dequate inquiry into possible racial bias is . . . essential in a case in which an African-American defendant is charged with commission of a capital crime against a White victim”].) Hazlett was charged with capital murder — where disparity in sentencing based on the same racial factors present in this case is most pronounced in our criminal justice system. (See McCleskey v. Kemp (1987) 481 U.S. 279, 356 (dis. opn. of Blackmun, J.) [“black- defendant/white-victim cases advanced to the penalty trial at nearly five times the rate of the black-defendant/black-victim cases . . . and over three times the rate of white-defendant/black- victim cases”]; see also Walker v. Georgia (2008) 555 U.S. 979, 981 (stmt. of Stevens, J.) [McCleskey “make[s] it abundantly clear that there is a special risk of arbitrariness in cases that involve black defendants and white victims”].)

Additionally, Black male defendants are disproportionately sentenced to higher penalties for the type of capital offense at issue in this case. (See Note, A Survey of the

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History of the Death Penalty in the United States (2015) 49 U.Rich. L.Rev. 693, 707 [discussing a study showing Black defendants were sentenced to death in nearly 100 percent of cases involving the rape and murder of a White victim, whereas all defendants convicted of such offenses were sentenced to death in 70.8 percent of such cases]; see also Baker, Once a Rapist? Motivational Evidence and Relevancy in Rape Law (1997) 110 Harv. L.Rev. 563, 594 [“Black men who rape white women receive much greater penalties than do other men who rape white women”].) “Because of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate but remain undetected . . . . [¶] The risk of racial prejudice infecting a capital sentencing proceeding is especially serious in light of the complete finality of the death sentence.” (Turner v. Murray (1986) 476 U.S. 28, 35; see People v. Bankston (2026) 19 Cal.5th 786, 911–914 (conc. opn. of Evans, J.) [discussing the impact of appeals to racial bias, particularly in capital trials].)

These circumstances, taken together, more than establish an inference of racial bias. As such, I address the Attorney General’s contention that there are “nondiscriminatory reasons for a peremptory challenge that are apparent from and ‘clearly established’ in the record [citations] and that necessarily dispel any inference of bias.” (Scott, supra, 61 Cal.4th at p. 384.) In considering the totality of the circumstances, a reviewing court may consider a readily apparent race-neutral reason from the record “only when these reasons ‘necessarily dispel any inference of bias,’ such that ‘ “there is no longer any suspicion . . . of discrimination in those strikes.” ’ ” (Battle, supra, 11 Cal.5th at p. 773.)

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While neither the court nor the prosecutor articulated any race-neutral reasons, the Attorney General posits that Prospective Juror A.E. was properly removed based on her “reservations regarding the use of the death penalty as a tool of revenge, as well as about whether . . . DNA evidence might prove [Hazlett’s] innocence.”

Prospective Juror A.E. described herself as a 17-year resident of Kern County who had attended college and worked as an administrative assistant for over seven years. Prospective Juror A.E. claimed no hardships. While she had a brother-inlaw who went to jail for drugs and allegedly sexually assaulted his daughter, she was not aware of the circumstances and recounted those matters “were handled fine.” She “ha[d] no attitude” generally toward law enforcement officers and never knew someone who was falsely accused of a crime, or a family member involved in a lawsuit.

Regarding her opinions on the death penalty, Prospective Juror A.E. stated that she felt it was “used too often” and that “everybody wants to get even with everyone.” She also wrote, “People are accused and then come to find out they were innocent and released.” Asked whether she felt the death penalty was used too often, seldom, randomly, or appropriately, Prospective Juror A.E. responded: “Too seldom [sic]. People are accused [and] then come to find out they were innocent [and] released.” She indicated she could be a fair and impartial juror. Prospective Juror A.E. confirmed she would not refuse to impose the death penalty based on any opinion she had of the death penalty. She confirmed she could reach either a death or life without the possibility of parole verdict based on the evidence. She explained to the trial court that her concerns about an individual possibly being exonerated in the future related to the

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individual’s innocence being proved by “DNA results” and noted “[t]hat’s it.” She stated that this concern would not influence her in this case if she were tasked with making the penalty decision. She confirmed she was not biased in favor of the death penalty, nor in favor of life imprisonment without the possibility of parole. A.E. confirmed that notwithstanding her concerns as expressed on her questionnaire, she could fairly consider and weigh all the evidence presented and vote for death if she determined it to be the appropriate penalty.

During the prosecutor’s voir dire, Prospective Juror A.E.

confirmed her belief “that it has happened that people have been sent to death row and then DNA has proved their innocence.” The prosecutor asked if A.E. believed that an innocent person being sent to death row has happened in California, and A.E. replied affirmatively. The prosecutor stated, “If you believe that to be the case, then you must believe that it could happen in this case” and A.E. replied affirmatively. When the prosecutor asked Prospective Juror A.E. whether “having no reasonable doubt with regard to [Hazlett]’s guilt” in the guilt phase she could vote for death “if [she] thought it was an appropriate case,” she said, “Probably not.” The prosecutor then asked, “And the reason that you could not sentence him to death, even though you believed beyond a reasonable doubt that he committed the crime, because you’d be frightened that he, nevertheless, might be innocent and the death penalty is final?” A.E. responded, “Yes.” The prosecutor continued, “[B]ut doesn’t that mean — since you’d always be worried that the defendant that you found guilty might somehow not be guilty, doesn’t that mean that you could never vote to sentence him to death?” A.E. responded, “No. I would just listen to the evidence and then go from that — from the evidence as far as finding him guilty or not.” A.E. explained

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that during any penalty trial she could vote for death if warranted based on the evidence but added that it would be difficult to do so because “we, as humans, always will have that in the back of our mind,” that is, the thought that “I might be wrong” about the defendant’s guilt.

The prosecutor followed up with additional questions about the possible appropriate use of the death penalty: “Have you heard of cases, you know, criminal cases that maybe you read about or watched on TV or heard about in the news where you heard about it and you said to yourself you know what, if that’s what happened, death is the appropriate penalty?” A.E. responded, “Well, like humans, we all have thoughts like that, yes.” She affirmed that “if [her] reason told [her] that the appropriate penalty in this case was death, [she] could . . . look the defendant in the eye and render a verdict of death.”

The prosecutor posed this final question to Prospective Juror A.E.: “And some people would not want to be put in the position of making a life-or-death choice, say it’s too emotionally rending, it’s too difficult; and some people might say you know what, even though my reason tells me that the appropriate penalty is death, there’s nobody I have to look in the eye . . . so I’m just going to take the easy way out and vote for life without parole, even though that’s not what I think the penalty should be. Is there any chance you might be such a person?” A.E. answered, “No.”

Neither side challenged Prospective Juror A.E. for cause. Given the particular circumstances of this case, the record does not establish a race-neutral reason for the prosecutor to strike Prospective Juror A.E. that necessarily dispels any inference of racial discrimination. The Attorney General

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represents that A.E. had reservations about the use of the death penalty as a “tool of revenge.” But A.E. did not use those words and only expressed a sentiment that “everyone wants to get even with everyone.” A.E.’s apprehension about the death penalty concerned the risk of executing someone who is later exonerated. To be sure, we have previously held that reluctance and equivocation in imposing the death penalty are race-neutral reasons that can justify striking a prospective juror. (See, e.g., People v. Winbush (2017) 2 Cal.5th 402, 436; People v. Lomax (2010) 49 Cal.4th 530, 572; People v. Ledesma (2006) 39 Cal.4th 641, 677–678.)2 We have also determined that “significant

2 While general reluctance to impose the death penalty was considered a race-neutral reason for using a peremptory challenge at the time of Hazlett’s trial, views have since evolved. In 2021, the Legislature enacted Assembly Bill No. 3070 (2019– 2020 Reg. Sess.), which added Code of Civil Procedure section 231.7 and altered the procedures for raising and evaluating claims of improper discrimination during jury selection. For all trials in which jury selection begins on or after January 1, 2022, several justifications that have served as proxies for excluding potential jurors of color will be deemed presumptively invalid including a distrust of the criminal justice system. (Code Civ. Proc., § 231.7, subd. (e)(1) [“distrust of or having a negative experience with law enforcement or the criminal legal system”].) Expressing distrust in imposing a death sentence for fear of wrongfully convicting and executing someone is an example of distrust in the criminal legal system. Such views no longer justify striking a juror “unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender . . . .” (Code Civ. Proc., § 231.7, subd. (e).) Thus, it appears that reluctance to impose the death penalty stemming from distrust in the efficacy of convictions is no longer a valid, race-neutral ground for excusal.

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reservations about the death penalty” can amount to a race- neutral reason that dispels any inference of bias. (See Battle, supra, 11 Cal.5th at p. 782.) Yet in making that determination, our inquiry remains focused on the totality of the circumstances, accounting for the individual circumstances of each case.

In this case, Prospective Juror A.E. expressed a degree of apprehension in imposing the death penalty, mainly based on concerns of executing an innocent person. Two factors render A.E.’s apprehension of nominal significance in this case: (1) A.E.’s apprehension was tempered and largely concerned a circumstance — lack of DNA evidence — that would not arise in this case; and (2) A.E.’s apprehension about imposing the death penalty was shared amongst seated White jurors. Ultimately, I am unpersuaded that this reason necessarily dispels an inference of racial discrimination.

Prospective Juror A.E.’s apprehension was relatively tempered and largely concerned a circumstance not particularly

Notably, recent scholarship and studies illuminate that reluctance to impose capital punishment is not race neutral. In practice, excusals based on reluctance to impose the death penalty — expressed by prospective jurors or anticipated by prosecutors based on the prospective juror’s race — disproportionately remove African Americans from serving as jurors. African Americans oppose capital punishment at higher rates than Whites. (Haney et al., The Continuing Unfairness of Death Qualification: Changing Death Penalty Attitudes and Capital Jury Selection (2022) 28 Psychol. Pub. Pol’y. & L. 1, 2 [“The fact that African Americans, especially, have historically been opposed to capital punishment in greater numbers than other groups [citations] accounts for their disproportionate exclusion in the death qualification process [citation], corroborated more recently in a smaller (county-wide) California jurisdiction”].)

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salient to this case. Her questionnaire reflected concerns regarding the risk of wrongful convictions — specifically that people who are sentenced to death have later been exonerated by DNA evidence. Rather than reflecting a valid, race-neutral reason for a peremptory strike, A.E.’s statements appear to be thoughtful remarks based upon the fact that wrongful convictions have occurred in the past. 3 At one point, she remarked that she could “probably not” return a death verdict based on concerns of executing an innocent person. In response to questions from the court, defense counsel, and the prosecution, however, Prospective Juror A.E. repeatedly maintained she could impose the death penalty based on the evidence establishing guilt.

We must consider Prospective Juror A.E.’s responses in context, not in isolation. (Flowers, supra, 588 U.S. at p. 315 [courts must evaluate the use of peremptory strikes “in the context of all the facts and circumstances” not “in isolation”]; id. at p. 314 [noting the challenged strike “might be deemed permissible” “[i]n a different context”].) A.E.’s concern regarding the execution of an innocent individual did not suggest that she had “concerns about whether the death penalty should be imposed at all.” (Battle, supra, 11 Cal.5th at p. 780.)

3 According to the Death Penalty Information Center, there have been 203 exonerations of death row prisoners in the United States. (Death Penalty Information Center, Innocence Database (2026) <https://deathpenaltyinfo.org/database/ innocence> [as of Aug. 27, 2026]); all Internet citations in this opinion are archived by year, docket number and case name at <https://courts.ca.gov/opinions/cited-supreme-court-opinions>.) Out of the 203 exonerations, 34 involved DNA evidence. Eight exonerees had been convicted in California and 109 exonerees were Black men.

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This type of apprehension is distinct from the challenged juror in Battle, supra, 11 Cal.5th 749. A.E.’s concern is reflective of society’s interest in ensuring the right individual is identified as the perpetrator of a crime — particularly of a capital crime. (Wade v. Brady (D.Mass. 2006) 460 F.Supp.2d 226, 249 [“In accordance with the State’s interest in doing justice, exculpatory DNA results may allow the state to both free the innocent and convict the guilty. Not only have 183 individuals been exonerated thus far [in 2006] by DNA evidence, but almost 30% of the exonerations have led to the apprehension of the real perpetrator”]; The Adequacy of Representation in Capital Cases, Hearings before Sen. Com. on Judiciary, Subcom. on Constitution, 110th Cong., 2d Sess., at p. 84 (2008), statement of William Sessions [“We should always remember that when the wrong person is convicted, the real perpetrator remains free, perhaps to commit more crimes”].)

In contrast, the challenged juror in Battle described the death penalty as cruel and inhumane, and she “signal[ed] she may have had more than one reason for her concerns.” (Battle, supra, 11 Cal.5th at p. 780.) We explained the challenged juror’s use of those “powerful words” evinced she “had concerns about whether the death penalty should be imposed at all.” (Ibid.) We also explained that the challenged juror’s “death penalty reservations were serious,” as “she had an inherent discomfort with the death penalty.” (Ibid.)

In considering whether the prosecution was so obviously motivated by apparent race-neutral reasons, it is particularly relevant that, in this case, lack of DNA evidence was not a factor. Prospective Juror A.E.’s apprehension indicated she would have concerns voting to execute someone absent DNA evidence. Here, however, there was significant DNA evidence

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establishing that Hazlett committed the crime. Thus, Prospective Juror A.E.’s concern that DNA evidence would later exonerate an executed prisoner was not particularly pertinent given the DNA evidence supporting the prosecution’s case. This concern does little to dispel the inference of racial discrimination. This is particularly true in light of the prosecution’s willingness to accept White jurors who equivocated about the death penalty.

Next, Hazlett points out that other seated jurors shared similar apprehensions. “Although such [comparative juror] analysis is not required at the prima facie stage, . . . it can sometimes ‘aid in determining whether the reasons we are able to identify on the record are ones that help to dispel any inference that the prosecution exercised its strikes in a biased manner.’ ” (Battle, supra, 11 Cal.5th at p. 782.) In this case, the fact that seated, White jurors shared Prospective Juror A.E.’s apprehensions about the death penalty tends to undermine the contention that this race-neutral reason necessarily dispels the inference of racial bias.

Here, like Prospective Juror A.E., several White seated jurors expressed apprehensions about the death penalty and a general desire to invoke such punishment only if presented with overwhelming evidence. For instance, Juror No. 125130 expressed a concern that juries may come to incorrect conclusions or wrongfully convict someone, stating, “There’s always misconceptions, you know. Lines crossed. There has [sic] been cases where they have to come before a court and do all of this and they’re actually innocent.” Since Prospective Juror A.E. voiced concerns similar to those voiced by White seated jurors, Prospective Juror A.E.’s apprehension to impose

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the death penalty does not constitute a race-neutral reason that would dispel an inference of racial discrimination.

The majority and the Attorney General maintain there were differences between Prospective Juror A.E.’s expressed apprehensions and those of the seated jurors. But to the extent there were any differences in the responses, “th[ose] differences seem far from significant” in light of the “strong similarities.” (See Miller-El v. Dretke (2005) 545 U.S. 231, 247 (Miller-El) [where there were “strong similarities” and “some differences” in views of a stricken Black venireperson and similarly situated non-Black jurors, “the differences seem far from significant”].) Specifically, the majority makes much of the fact that Juror No. 125130’s concern was expressed following a question that was not specifically about the death penalty. (Maj. opn., ante, at p. 44, fn. 21.) But this is a first stage case where the question is merely whether there was an inference of racial discrimination. Prospective Juror A.E.’s concerns were similar enough to those voiced by White seated jurors that we should not ignore the trial court’s failure to require the prosecutor to provide reasons for striking her. Since the trial court acquiesced to the prosecutor’s refusal to explain why it struck A.E., Hazlett had no opportunity to highlight the similarities in the expressed concerns. Nor did he have an opportunity to question why the prosecutor was unconcerned by the White jurors who shared comparable views, which the prosecutor could have then addressed. (See Williams v. Runnels (9th Cir. 2006) 432 F.3d 1102, 1110 [vacating the district court’s denial of defendant’s petition for writ of habeas corpus, and concluding the defendant “cannot be charged, prior to the prosecutor’s explanation of his challenges, with developing a record that might refute the prosecutor’s possible explanations”].) Thus, we cannot assume that the prosecutor

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removed Prospective Juror A.E. because of this asserted apprehension since White jurors who expressed similar apprehensions remained on the jury. (Wade v. Terhune, supra, 202 F.3d at p. 1198 [the prosecutor permitting other jurors “ ‘similarly situated’ ” to the challenged prospective juror to remain on the jury “allow[s] us to infer racial bias and would thus support [a] prima facie case”]; see also Lewis v. Lewis (9th Cir. 2003) 321 F.3d 824, 830 [reversing with directions to grant the defendant’s writ of habeas corpus petition, as proffered reasons for an African-American prospective juror’s removal were not applied to seated jurors]; Turner v. Marshall (9th Cir. 1997) 121 F.3d 1248, 1253–1254 [vacating the district court’s denial of habeas corpus relief, on the grounds the prosecutor’s proffered reason in striking an African-American prospective juror was not equally applied to a White juror].)

In short, the differences noted by the majority and the Attorney General did not absolve the trial court of its duty to inquire into the prosecutor’s actual reasons for striking Prospective Juror A.E. and to evaluate those reasons. To hold otherwise would effectively compromise our role in “vigorously enforc[ing] and reinforc[ing] [Batson], and guard[ing] against any backsliding.” (Flowers, supra, 588 U.S. at p. 301.)

In sum, considering all the relevant circumstances, the record supports an inference that the prosecutor impermissibly removed Prospective Juror A.E. because of her race. In a highly racially fraught case, the prosecutor used his first peremptory challenge to remove the sole remaining African-American prospective juror and then immediately accepted the jury as constituted. Prospective Juror A.E. expressed apprehension about executing a person who might later be exonerated by DNA evidence. Such apprehension does not necessarily dispel the

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inference of racial discrimination because it is a concern that reflects society’s interest in exonerating the innocent and convicting the guilty, was shared by several White seated jurors, and was inapplicable in this case given the ample DNA evidence establishing Hazlett’s guilt. Given the totality of the circumstances, Hazlett demonstrated a prima facie case of racial discrimination.

II.

PEREMPTORY CHALLENGES & THE RACIAL JUSTICE ACT The RJA’s primary command is that “[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin.” (§ 745, subd. (a).) To implement this prohibition, the statute provides four methods, including showing that “an attorney in the case . . . exhibited bias or animus towards the defendant because of the defendant’s race, ethnicity, or national origin, whether or not purposeful.” (§ 745, subd. (a)(2).)

The facts of this case provided fertile ground for the operation of either conscious or unconscious bias “towards the defendant.” (§ 745, subd. (a)(2).) As the majority concedes, there were “ ‘salient racial issues in the case [that] raise[] concerns that warrant careful consideration’ ” and the “ ‘racially charged’ ” facts provided the prosecutor “ ‘with a plausible motive to strike Black prospective jurors on the impermissible “assumption or belief that” they “would favor” [the defendant] solely because of their shared race.’ ” (Maj. opn., ante, at pp. 32– 33.) The majority’s observations are well-taken. As discussed above, this case involved the racially motivated rape and murder of a White woman by a Black man, in which the prosecutor referred to the “O.J. Simpson defense” to undermine

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the defense. (See maj. opn., ante, at pp. 150–152 [finding error harmless even assuming that the prosecutor’s argument concerning the “O.J. Simpson defense” violated the RJA]; see also dis. opn. of Liu, J., ante, at pp. 3–4 [arguing that the prosecutor’s comments concerning the O.J. Simpson case during argument violated the RJA].) It’s difficult to conceive of a case with greater racial charge.

Although conceding the prosecutor certainly had a “ ‘plausible motive’ ” (maj. opn., ante, at p. 32) to strike the only African-American juror, the majority finds no possibility of an RJA violation. In support of this interpretation, it makes two central arguments.

First, the majority suggests that even if the prosecutor acted on a forbidden race-based motive, his conduct was not bias “directed toward the defendant and by reason of the defendant’s race” but instead was bias towards the stricken juror. (Maj. opn., ante, at p. 153.) In the majority’s telling, the prosecutor here could have formulated a plan — based on the defendant’s race and the racially explosive facts of the crime — to bolster his chances at securing a conviction and death sentence by constructing an all-White jury through race-based peremptory challenges. Yet, under the majority’s logic, by doing so, the prosecutor somehow was not exhibiting bias “towards the defendant” based on the defendant’s race. The majority holds that the only possible bias in this scenario was towards the stricken juror.

This argument is meritless. It hinges on a cramped and unsupported view of what constitutes bias “towards the defendant.” (§ 745, subd. (a)(2).) No one, not even Hazlett, has suggested that the prosecutor harbored animus “towards” Black

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people generally or the stricken juror specifically. The prohibition of discriminatory behavior targeted by Batson/Wheeler, a doctrine focused on intentional discrimination, is not an effort to “brand the prosecutor a liar or a bigot.” (Gutierrez, supra, 2 Cal.5th at p. 1183 (conc. opn. of Liu, J.).) Prosecutors rely on prohibited racial stereotypes not necessarily out of animosity towards any particular group or juror, but to secure a perceived tactical advantage. (See Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts (1989) 56 U.Chi. L.Rev. 153, 172 [“The Court in Swain [v. Alabama (1965) 380 US 202] told prosecutors that they might lawfully exclude blacks from a jury for trial-related reasons; Batson informed them that this tactical exclusion was no longer permissible”].) Empirical analysis reflects that there may be some truth in the racial stereotyping that overzealous prosecutors, impermissibly, have relied upon at times. For example, as a purely statistical matter, there is evidence that “striking potential black jurors gives prosecutors a strategic advantage when attempting to convict a black defendant who killed a white victim.” (Hatoum, Injustice in Black and White: Eliminating Prosecutors’ Peremptory Strikes in Interracial Death Penalty Cases (2018) 84 Brook. L.Rev. 165, 176; see also ante, fn. 2.) Thus, relying on racial stereotypes when selecting a jury is not inevitably associated with bare animus towards the targeted group or its members, but may reflect a strategic choice to secure the desired verdict.

On the other hand, failing to fairly probe specific jurors’

characteristics and instead relying on racial stereotyping is a form of discrimination towards the targeted jurors themselves. (See Powers, supra, 499 U.S. at p. 410 [“Race cannot be a proxy

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for determining juror bias or competence”].) But, in cases such as this one, it is simultaneously an unlawful effort to “seek, obtain, or impose a sentence on the basis of [the defendant’s] race.” (§ 745, subd. (a).) When a prosecutor strikes a juror based on a discriminatory belief that any juror who shares a racial identity with a defendant cannot be impartial, or to make implicitly discriminatory arguments that might be more readily accepted by an all-White jury, this is necessarily bias “towards the defendant because of the defendant’s race.” (§ 745, subd. (a)(2).)

As the high court explained almost 150 years ago, “how can it be maintained that compelling a [person of color] to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?” (Strauder v. West Virginia (1880) 100 U.S. 303, 309, italics added.) The high court has expanded the scope of equal protection under Batson to encompass cases of White defendants complaining of racially discriminatory peremptories — on the basis of the presence of discrimination towards Black jurors. (Powers, supra, 499 U.S. at pp. 410–411.) But this hardly suggests that there is no discrimination against Black defendants flowing from excluding Black prospective jurors. (See id. at p. 418 (dis. opn. of Scalia, J.) [collecting numerous cases in which discriminatory excusal of Black jurors was held to violate the rights of Black defendants prior to the recognition of juror-based standing in Powell].) As the Supreme Court has more recently explained, although “racial minorities are harmed more generally” by discrimination in jury selection, defendants themselves are also “harmed, of course, when racial discrimination in jury selection

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compromises the right of trial by impartial jury.” (Miller-El, supra, 545 U.S. at p. 237, citing Strauder, at p. 308.)

Further, the majority’s argument, that only conduct by a prosecutor aimed directly “towards” a defendant is cognizable under the RJA, sweeps extremely broadly in ways that undermine the law’s central purpose. For instance, what if a prosecutor seeking to maximize a Black defendant’s sentence decides to strike a Black judge under Code of Civil Procedure section 170.6 on the basis of their discriminatory belief, unconscious or otherwise, that judges may act more sympathetically towards a member of their own race? Would such conduct be noncognizable under the RJA because the discriminatory action is only “towards” the judge even where the ultimate target is the Black defendant?

And what if prosecutors’ conscious or unconscious desire for an all-White jury leads them to utilize other aspects of the jury selection process in a race-conscious manner? Prosecutors can just as easily harbor a discriminatory motive in seeking to preferentially exclude Black jurors for cause or hardship, rather than through peremptory challenges. (See People v. Johnson (2019) 8 Cal.5th 475, 528 (dis. opn. of Liu, J.) [discussing “a wellfounded suspicion that the prosecutor here, in evaluating prospective jurors, targeted only Black jurors for criminal background checks”]; Battle, supra, 11 Cal.5th at pp. 783–784 [acknowledging that “selective solicitude for minority jurors’ hardship concerns” may be evidence of discrimination].) The legislative history of the RJA provides no support for insulating such practices from scrutiny.

The majority’s second argument is more narrow and rests on more solid footing but is nonetheless ultimately

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unpersuasive. Today’s opinion concludes that the legislative history of the RJA indicates that the Legislature intended to exclude peremptory challenges from the ambit of the RJA when it was first enacted. In support of this theory, the majority notes that the Legislature specifically removed a provision from the RJA addressing peremptory challenges, in coordination with, and depending upon, the passage of Assembly Bill No. 3070 (2019–2020 Reg. Sess.) (Assembly Bill 3070). (Maj. opn., ante, at pp. 154–158.) Any discussion of Legislative intent, however, must first begin with the uncodified findings. Consideration of these findings casts considerable doubt on the majority’s conclusion that the Legislature’s only possible intent in passing a version of the RJA lacking specific reference in the bill text to discriminatory peremptory challenges was to exempt them entirely.

Our prime directive in interpreting the RJA, or indeed any law, is to construe it to “ ‘ “ ‘ “ ‘effectuate the law’s purpose.’ ” ’ ” ’ ” (People v. Lopez (2026) 19 Cal.5th 639, 657 (Lopez).) And in understanding legislative intent, “normally we give [uncodified] legislative findings great weight.” (Martinez v. Regents of University of California (2010) 50 Cal.4th 1277, 1289.) The legislative findings expressing the RJA’s fundamental purpose are therefore critical here.4 The

4 Although the majority criticizes our focus upon the RJA’s uncodified legislative findings (maj. opn., ante, at p. 158), our cases instruct that the fundamental goal of statutory construction is to ascertain the intent of lawmakers in order to effectuate the purpose of the law. (People v. Pieters (1991) 52 Cal.3d 894, 898.) The uncodified findings here unambiguously articulate the RJA’s purpose. As such, they offer powerful guidance on how to properly construe its provisions.

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Legislature unequivocally specified that its purposes in enacting the RJA was “to eliminate racial bias from California’s criminal justice system” and “to ensure that race plays no role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317, § 2, subd. (i).) As courts have interpreted these findings and the RJA’s text, “this broad scheme, which covers every stage of the prosecutorial process — from investigation through charging, trial, conviction, and sentencing — defendants may pursue different theories supported by different kinds of proof.” (Young v. Superior Court of Solano County (2022) 79 Cal.App.5th 138, 164 (Young), italics added.) More recently, the Legislature exhorted that, “[l]ike a metastatic cancer, racial bias in one part of a criminal prosecution infects the whole.” (Stats. 2025, ch. 721, § 1, subd. (e), italics added.) Thus, any construction of the RJA creating a gap that allows a particular form of racial discrimination to persist should strongly be disfavored. The particular exemption that the majority opinion creates — for discriminatory peremptory challenges — is even more difficult to accept in light of the RJA’s findings expressly calling out the problem of racial discrimination in the exercise of peremptory challenges.

In first enacting the RJA, the Legislature observed that “[m]ore and more judges in California and across the country are recognizing that current law, as interpreted by the high courts, is insufficient to address discrimination in our justice system,” citing cases involving allegations of racial bias in jury selection, and specifically cases involving the exercise of biased peremptory challenges. (Stats. 2020, ch. 317, § 2, subd. (c), citing Turner v. Murray (1986) 476 U.S. 28, 35 [restrictions on voir dire regarding racial prejudice], People v. Bryant (2019) 40 Cal.App.5th 525, 543–549 (conc. opn. of Humes, P. J.) (Bryant)

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[biased peremptory challenges], State v. Saintcalle (2013) 178 Wn.2d 34, 35 [same]; see also Stats. 2020, ch. 317, § 2, subd. (d), citing People v. Williams (2013) 56 Cal. 4th 630, 652, id. at pp. 699–728 (dis. opn. of Liu, J.).) The RJA’s legislative findings reference more cases involving discrimination in jury selection than any other category of cases.

Not only did the Legislature cite cases regarding discrimination in jury selection generally, but it also specifically expressed concern about discrimination in the exercise of peremptory challenges. It explained as an “example” of “racism clearly infect[ing] a criminal proceeding, under current legal precedent” that “the legal standards for preventing racial bias in jury selection are ineffective . . . [and] ‘require[e] a showing of purposeful discrimination [that] sets a high standard that is difficult to prove in any context.’ ” (Stats. 2020, ch. 317, § 2, subd. (c), italics added, quoting Bryant, supra, 40 Cal.App.5th 525, 544 (conc. opn. of Humes, P. J.).) Bryant, as noted, was a Batson/Wheeler case. As Justice Humes’s concurring opinion sets forth in some detail, the Batson/Wheeler framework, particularly given its narrow focus on purposeful discrimination, had long proven inadequate to prevent discrimination from infecting the exercise of peremptory challenges. (Id. at pp. 544–546.) Presiding Justice Humes specifically highlighted the prospect of reform in this area, citing Washington’s General Rule 37. (Id. at pp. 548–549.) The most natural interpretation of the RJA’s findings is that the Legislature intended the RJA to address discrimination in jury selection as part of the RJA when it specifically rejected the overly restrictive “current legal precedent” under Batson/Wheeler. (Stats. 2020, ch. 317, § 2, subd. (c).)

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The majority brushes these findings aside because the findings “accompanied two options in the bill, one which addressed discrimination in jury selection and one which did not, and only the latter became effective.” (Maj. opn., ante, at p. 158.) The majority eschews the legislative findings by simply assuming the very point it is trying to prove. According to the majority, express legislative findings that identify peremptory challenges as a problem to be addressed by the RJA may be disregarded. The majority believes this is because, by providing for two versions of the RJA, the Legislature could only have created one version that “addressed discrimination in jury selection and one which did not.” (Ibid.)

Although this is one possible reading of the legislative history, I do not think it is the only one. Nor is it the most compelling. Aware that these bills had potentially overlapping provisions, the Legislature maintained the same unitary set of clear findings but created differing versions of the bill text based on the contingency of the enactment of Assembly Bill 3070. One version of the RJA’s bill text included an express provision referencing peremptory challenges. The other version of the RJA’s bill text, conditioned on the passage of Assembly Bill 3070 and ultimately enacted, did not. (See Maj. opn., ante, at pp. 156– 157, citing Assem. Bill No. 2542 (2019–2020 Reg. Sess.) §§ 3, 3.5, 7, as amended Aug. 25, 2020.) The majority concludes that, by enacting the version that did not expressly reference peremptory challenges in the bill text, the Legislature meant to exclude them from the scope of the RJA, leaving only Assembly Bill 3070 to address discriminatory peremptory challenges.

It is undisputable that the Legislature did not wish there to be a conflict between the RJA and Assembly Bill 3070 in addressing claims of discriminatory peremptory challenges. But

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this could have been a concern about conflicting procedures, rather than substantive ends. (See Couzens, California Racial Justice Act of 2020 (Apr. 2024) p. 7 [“To avoid potential confusion or conflict with Assembly Bill 3070 . . . which in some ways is inconsistent with the provisions of section 3 of AB 2542 and more fully addresses bias in the exercise of peremptory challenges, the Legislature enacted section 7 of AB 2542”].) For instance, Assembly Bill 3070 eliminated the prima facie case, the procedural point disputed in Hazlett’s Batson/Wheeler claim, from its framework for addressing discriminatory peremptory challenges. (See Code Civ. Proc., § 231.7, subd. (c).) The RJA, however, contains its own distinct framework, which still retains a prima facie burden. (Pen. Code, § 745, subd. (c).) It seems entirely plausible that the Legislature did not mean to exempt discriminatory challenges under the RJA, but instead merely wished to provide parties and the courts the more specific procedures detailed in Assembly Bill 3070 for litigating prospective challenges.

That the Legislature might enact multiple statutes covering the same subject is not uncommon. (See, e.g., Landeros v. Flood (1976) 17 Cal.3d 399, 414 [“There is nothing to prevent the Legislature from imposing a reporting requirement on physicians in two separate statutes, even if their coverage apparently overlaps”]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 931, fn. 7 [noting Law Revision Commission’s observation that, in the context of governmental immunity, “[i]n some cases, statutes expressing conflicting policies overlap”].) Indeed, we have an entire doctrine to address situations in which two statutes addressing the same issue should be resolved in cases of irreconcilable conflict between the two. (See Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301,

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310 [“[i]f conflicting statutes cannot be reconciled, later enactments supersede earlier ones [citation], and more specific provisions take precedence over more general ones”].) By deleting the subject-specific peremptory challenge provision from the RJA, the Legislature could well have sought to make clear that the “more specific” procedural terms of Assembly Bill 3070 should be controlling in cases of peremptory challenges. (Ibid.) The Legislature likely still intended for the RJA to substantively forbid discriminatory peremptory challenges. As Hazlett argues, the Legislature merely “sought to avoid any possible confusion by allowing the more specific provisions of [Assembly Bill 3070] to govern in future cases.”

Such a reading more naturally comports with the overarching purpose of the RJA: to “eliminate racial bias” entirely from California’s criminal justice system and guarantee that race plays “no role at all in seeking or obtaining convictions or in sentencing.” (Stats. 2020, ch. 317, § 2, subd. (i).) An interpretation of the RJA which excludes discriminatory peremptory challenges, a major contributor of racial discrimination in criminal trials, would be inconsistent with a “broad scheme” which covers “every stage of the prosecutorial process.” (Young, supra, 79 Cal.App.5th at p. 164.)

As the majority acknowledges (maj. opn., ante, at pp. 158– 159), materials in subsequent legislative history for amendments to the RJA also support the view that the originally enacted RJA covered jury selection. Throughout multiple amendments to the RJA, the legislative history materials continued to explain that “[f]ar too many Californians have had their convictions and sentences upheld despite . . . [¶] . . . [¶] [t]he exclusion of all, or nearly all Black or Latinx people from serving on a jury.” (Fact Sheet, Assembly Bill No. 256

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(2021–2022 Reg. Sess.) May 24, 2021, p. 1, italics added; Assem. Com. on Public Safety, Background Information Request for Assem. Bill No. 1113 (2023–2024 Reg. Sess.) p. 3.) These materials appear to indicate that the Legislature viewed the originally enacted and subsequent versions of the RJA in the same way its original uncodified legislative findings suggested — as covering jury selection and the discriminatory exercise of peremptory challenges.

The majority responds that “the materials do not explain in any way how the specific provisions of the RJA purport to address discrimination in jury selection.” (Maj. opn., ante, at p. 159.) But there is no doctrine stating that the Legislature needs to spell out every conceivable application of a law in its legislative history. The more important question — one which the majority never answers — is why the legislative history indicates that the RJA covers the discriminatory removal of jurors during jury selection if the Legislature intended to exempt this process from the statute.

At a bare minimum, these materials suggest that an interpretation that the RJA prohibits discriminatory peremptory challenges is a reasonable one. The rule for remedial legislation, such as the RJA, is that it must be construed broadly to promote its protective purpose. (Lopez, supra, 19 Cal.5th at p. 657; see also People v. Wilson (2024) 16 Cal.5th 874, 967 (dis. opn. of Evans, J.).) The Legislature recently has reminded courts that we must expansively, and not narrowly, construe this landmark legislation:

“Because racial bias in the criminal legal system is the result of centuries of historical and embedded racial injustice, it requires bold, concerted, and

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ongoing efforts to undo. ‘The only way out of this morass — for all of us — is to stare at racial disparity unblinkingly, and then do what evidence and experts tell us is required to level the playing field and march forward together, collectively striving to achieve true equality for all Americans.’ (Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023) 600 U.S. 181, 408 (dis. opn. of Jackson, J.).) Thus is the aim of California’s Racial Justice Act and the Legislature’s intent in passing it. Its provisions should be interpreted in this light.” (Stats. 2025, ch. 721, § 1, subd. (f), italics added.) Unfortunately, the majority ignores the Legislature’s clarion call to action and, once again, has adopted an unduly narrow construction of the RJA which will allow cases infected with implicit bias to stand without remedy. 5

5 Even assuming the RJA applies to the exercise of peremptory challenges, this does not, as Hazlett suggests, necessarily demonstrate that the RJA was violated merely based upon his related claim that Batson/Wheeler was violated. A separate analysis would be required to determine whether the prosecutor acted with implicit bias in striking the sole African- American juror. Although I would conclude such a claim is cognizable under the RJA, it is unnecessary to address the merits of this claim as I independently conclude there exists reversible error based on the Batson/Wheeler violation. Regardless of the cognizability of peremptory challenges under the RJA, I note for future cases that the existence of implicitly discriminatory peremptory challenges may still be relevant to other claims of discriminatory conduct when considering the totality of circumstances.

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In our democratic system, the significance of serving on a jury cannot be understated. “Other than voting, serving on a jury is the most substantial opportunity that most citizens have to participate in the democratic process.” (Flowers, supra, 588 U.S. at p. 293.) “The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.” (Batson, supra, 476 U.S. at p. 87.) “[T]he very integrity of the courts is jeopardized when a prosecutor’s discrimination ‘invites cynicism respecting the jury’s neutrality,’ [citation], and undermines public confidence in adjudication.” (Miller-El, supra, 545 U.S. at p. 238.) “Taints of discriminatory bias in jury selection — actual or perceived — erode confidence in the adjudicative process, undermining the public’s trust in courts.” (Gutierrez, supra, 2 Cal.5th at p. 1154.)

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In this racially fraught case, Hazlett established a prima facie case of discrimination, requiring the trial court to have evaluated the prosecutor’s reasons in striking Prospective Juror A.E. Because the passage of time — nearly 20 years — makes impractical a remand to explore the prosecution’s actual reasons for striking A.E. (see Snyder, supra, 552 U.S. at p. 486), the judgment of conviction must be reversed.

EVANS, J.

I Concur: LIU, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Hazlett

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Procedural Posture (see XX below) Original Appeal XX Original Proceeding Review Granted (published) Review Granted (unpublished) Rehearing Granted

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Opinion No. S126387 Date Filed: August 27, 2026

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Court: Superior County: Kern Judge: Michael G. Bush

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Counsel:

Michael J. Hersek, Mary K. McComb and Galit Lipa, State Public Defenders, Arnold A. Erickson, Nerissa J. Huertas and Laura M. Rogers, Deputy State Public Defenders, for Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell and James William Bilderback II, Assistant Attorneys General, Kenneth N. Sokoler, Sean M. McCoy, Peter W. Thompson and Jessica Trieu-Simerly, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Laura M. Rogers Deputy State Public Defender 1111 Broadway, Suite 1000 Oakland, CA 94607 (510) 267-3300

Jessica Trieu-Simerly Deputy Attorney General 1300 I Street, Suite 125 Sacramento, CA 95814 (916) 210-6003